What Is a Notarized Separation Agreement
A notarized separation agreement is simply a separation agreement that is signed in the presence of a legal notary public. A notary public is a licensed person whose purpose is to witness the signing of important documents for verification purposes. Not all separation agreements need to be notarized, but this can be a useful step to take if there is a large asset or business at stake in the separation.
Any signed document can be notarized; the basic process of notarization is simple and straightforward. Essentially, a person signs a document in front of a notary public , who witnesses the signature and then writes down identifying information about the signatory and their reasons for signing. The notary public then stamps the document with an official seal.
As previously mentioned, a notarized separation agreement is typically not necessary, but may be a good idea in certain situations. Occasionally, a party to the agreement might seek to invalidate it sometime after the logistics of a separation have been finalized. For this reason, having the separation agreement notarized can present an irrevocable proof that the parties are in agreement and have signed the terms voluntarily.
Is a Notarized Separation Agreement Legally Binding
Under certain circumstances, a notarized separation agreement does become legally binding on the parties. Specifically, a notarized separation agreement is legally binding when the following conditions are met:
1. Statutory Period Has Elapsed
The notarized separation agreement has been in effect in its current form for one year prior to the commencement of the action for divorce, separation, or annulment by our attorney. The statutory period is computed from the date of the notarization, not the date of agreement.
2. Unambiguous Agreement
The terms of the notarized separation agreement must be clear and unambiguous. In other words, the terms of the notarized separation agreement must be definitely settled and not open for interpretation.
3. Not Conditional
The notarized separation agreement is not valid if its enforcement is conditional upon the performance of an act or condition which is impossible for the parties to perform. For instance, the notarized separation agreement must be clear and unambiguous regarding the payment of child support. The failure of a parent to pay child support for the support of his or her child/ren is not a condition precedent which would render the notarized separation agreement unenforceable.
4. Fully Executed Agreement
All parties to the notarized separation agreement must sign the notarized separation agreement before it becomes legally binding. Likewise, all parties to the notarized separation agreement must appear before the same notary public and have their signatures notarized at the same time.
5. Financial Disclosure
The notarized separation agreement must be based upon full financial disclosure and discovery and knowingly entered into at arms-length without fraud, overreaching, or unfairness to the other party.
6. Between Individuals
The notarized separation agreement must be between two individuals. An individual may not enter into a legally binding notarized separation agreement with a corporation or organization unless that organization is a limited liability corporation.
Benefits of a Notarized Separation Agreement
Many clients ask me if a Separation Agreement must be notarized. The answer is no, however, there are benefits to notarizing your Separation Agreement. The truth of the matter is that a notarized Separation Agreement is much like a testamentary will or a notarized deed, everyone believes that it has more "legal binding". Whether or not it does or does not have more "legal binding" I suppose depends on a person’s point of view. In any event, in today’s world, we have seen everything, even a court order that had been notarized.
The benefits of notarization are: 1) it makes the whole process seem official and also seems to affirm to the person signing the Separation Agreement that the Separation Agreement is a legally binding contract; 2) when a Separation Agreement is notarized there is no problem with the person having two signatures on one page; 3) after the Agreement is notarized, there is no need for the Agreement to be signed by two witnesses (remember, in New Jersey a Separation Agreement must be signed by two witnesses); 4) not only is the agreement witnessed by a notary, the agreement is sworn and attested to by a notary; and 5) if a party attempts to break the Separation Agreement some courts may find that the validity of the Separation Agreement has been reaffirmed by virtue of it being notarized.
I have also had Separation Agreements notarized two times just to minimize the chance that someone may challenge the Separation Agreement at some later time because it was signed by only one witness or to further make a Separation Agreement seem like a contract and therefore legally binding. There is no magic to notarization but parties sometimes believe it makes perhaps more of a powerful impression than it really does.
Key Components of a Binding Separation Agreement
Such an agreement must contain certain key elements in order to be binding:
Existence of a valid marriage under the applicable state law
A separation agreement can only be executed in connection with a dissolution or separation of a validly constituted marriage. In addition, a separation agreement is binding upon the parties until the time that a divorce action is commenced, at which time the agreement (or any of its provisions) may be merged into the judgment of divorce in whole or in part.
Voluntary consent of the parties
The existence of a legally valid separation agreement is predicated upon the voluntary consent of the parties and their full understanding of all of the terms therein. The New Jersey Supreme Court has determined that where the circumstances are such that a party may suffer improper pressure, fraud or undue influence such that the agreement would not reflect a true bargain between the parties, then its enforcement will not be sanctioned by the courts .
Adequate consideration
A legally enforceable separation agreement must be supported by adequate consideration. However, there need not be an equal exchange of consideration. In enacting a separation agreement, each party relinquishes certain rights, thus providing sufficient consideration for the other’s promise. The consideration may include an undertaking by one party to provide support, division of marital property and relinquishing of claims.
Full disclosure
If the separation agreement is to serve as a bar to a subsequent attack by either or both parties when the representation is made that the terms thereof, including the terms for alimony and equitable distribution, reflect a full and fair disclosure of the parties’ respective financial conditions, an honest exchange of financial information is essential.
Compliance with state law
Finally, a legally valid separation agreement must conform with the written requirements of the state statute governing separation agreements in order to be fully enforceable.
Overlapping Issues and Challenges
Common issues or challenges that arise when dealing with notarized separation agreements or minutes of settlement include: Of particular note is the scenario where an individual will seek the disclosure of a notarized separation agreement where they were not a party to the separation agreement but it appears that their spouse entered into the separation agreement without the knowledge of that individual and/or without the knowledge of one of its terms. The methodology in seeking such disclosure is generally governed by the Rules of Civil Procedure of the particular jurisdiction in which the request is to be brought. In Ontario, Family Law Rule 24 deals with disclosure in the Family Court where there is a request for disclosure of non party information. In order to obtain an Order of the court for disclosure of such information, it must be established that there are: The Court in Severino v. Burke :2009 CanLii 2181 (ONSC) dealt with the allocation of onus under Rule 24. Rule 24 requires that the person requesting the information must show that there exists "some basis in fact" grounding their belief that the requested disclosure would establish relevant information. The court held that it is usually sufficient if the requesting party sets out the barebones allegations on information and belief as to operative facts. It is not sufficient, however, for the requesting party to merely state the existence of the document they are seeking. In the case of Moore v. Gorman (2010) 78 R.F.L. (6th) 116 (Ont.Supt. Ct.), the defendant sought disclosure of a mortgage not in issue so that they could make a contribution claim against the plaintiff’s share of the proceeds. A contribution claim deals with instances where the plaintiff sues two defendants who are both found liable and one or both found liable then seek to recoup the amount they paid from the other defendant. In this case, the defendant had to seek leave of the court as per Rule 24.06. It was determined that the court did not have the exclusive power to grant such leave. The defendant submitted that it was not required to provide the necessary particulars required by the discretion in Rule 24 because the court had already determined that the mortgage existed-it was a filed document. As such, the mortgage contained at least some information relevant to the action. While the court did not dispute that there was some degree of relevance to the information that the defendant was seeking, the court also stated that the information might or might not be relevant. The court stated that the substantive provision to apply is Rule 24.01(2), which requires a party to give discovery of documents in their possession, power or control that are relevant to a matter in issue in the proceeding.
Legal Guidance and What to Do Next
Not only should you seek legal advice before signing a separation agreement, but you should understand that there are some clients who should not sign a separation agreement at all. The costs of divorce litigation are nothing compared to the costs associated with a poorly written or non-enforceable agreement. Before you sign your separation agreement, or immediately thereafter, you should have your prospective divorce lawyer review it . Ask yourself the following questions: Once you obtain legal advice pertaining to the separation agreement from a qualified attorney, get a copy of the advice in writing. If the agreement is not signed, obtain an advice letter from a qualified attorney before the agreement is signed. Additionally, if the agreement is signed but you want to change terms or have it set aside, file a motion to vacate the agreement setting forth the reasons as to why the agreement it is not in your best interest to retain it or the reasons why it is unenforceable.