Seperation Agreement


We have been separated for 4 yrs. I drew up the separation agreement my self. . It has NOT gone thru the court system. At the time I left and did it, I was not in a well right frame of mind I needed medication. . My husband loaned his brother over $200,000.00 dollars and I failed to but that in the separation agreement. When one of us files for divorce can I include 1/2 of this loan in the final divorce settlement since it was marital funds at the time of the loan. . even if that is another 4 yrs down the road.
I do not want to file for divorce and put that nail in the coffin. I want us to make our marriage of 25yrs to work but he has a girlfriend and is doing nothing to
come back into the marriage.


Your legal recourse with regard to the Separation Agreement that doesn’t reference the loan really depends on the language in the agreement, and if it was validly executed. Most separation agreements will include certain standard provisions and waivers, one such provision states that the agreement reflects a full and final distribution of the marital property. If you are claiming that you were not of sound mind when you signed the papers, you could have a claim to have the Separation Agreement struck down on grounds of your incapacity. Be aware that this is a very very difficult task, and it is very rare for a judge to find that a party truly lacked the capacity necessary to enter into the agreement.


How do i know it was validly executed. we both signed it, and it was notorized. what type of language would i be looking for to see if it was validly executed.


If you both signed it and the document was notarized, it is considered validly executed unless you can prove it was signed due to fraud, coercion, ignorance or lack of mental capacity.


IT does not state anything about a full and final distribution of the marital property.
We still file married filing jointly,

  1. he gets the tax refund in both names, signs only his name and sends it to his bank account. does not ask me to sign it. seperation agreement states we split it 50/50. He now states that I did not pay any of the taxes ( he is self employed, he pays quarterly ) and he says I am not entitled to any of the refund. What can be done about this.?

  2. IS defered compensation subject to marital assets. ie he has over $300,000 in defered compensation, is 1/2 of that considered mine?

  3. the marrital residence was refinanced in his name , i signed a quick claim deed, I was given 1/2 equity. was i suppose to get all the equity? since he kept the home?


Even if your separation agreement does not contain a clause waiving your rights to later file for equitable distribution, the court will imply the waiver if the agreement reflects that both parties intended to enter into a comprehensive final settlement of property issues. Generally property settlement set forth in a validly executed separation agreement cannot be later altered or modified. All property issues should have been settled in the initial separation agreement, including the distribution of retirement accounts, employment benefits, and the marital residence. Without reviewing your agreement it is difficult to advise on whether you still have the right to file for equitable distribution or not.

As far as the tax refund is concerned, you can file a motion for breach of contract since he is not abiding by the terms of your separation agreement. I would suggest you read the following article:
Breach and Enforcement of a Separation Agreement


I looked back over the agreement, it states that I DO NOT WAVE ANY RIGHTS , to his companys 401 K , retirement etc… with that wording, am i safe to say I am still entitled to that in the equitable distrubution. we are still sepaerated , have been for 4 yrs. neither of us are planning currently to file for divorce. we still file married filing jointly. just want to make sure when he does file , i can then file for the equitable distrubution of his 401 and rretirement. .


If you have a clause in your agreement that preserves your right to his retirement benefits, then you should be entitled to a division of those benefits. You can either reach an agreement on how these should be divided, or you can petition the court by filing a claim for equitable distribution. Be sure to address this before you file for divorce.