Can financial separation be permanent even if we a couple withdraws divorce petition?

Asked over 1 year ago - San Jose, CA

My spouse has filed for divorce. We currently own property together and have a 3 year old girl. My spouse doesn't work and I am the only wage earner - but claims to want to start working again. We are agreeable how to split finances. Neither wants alimony from the other. Not sure what the law says regarding:
1. lf the divorce petition is withdrawn (to try again), is there a way to permanently split finances? Almost like a post nuptial agreement? This way each keeps what they make in future.
2. Would retirement assets such as 401K, IRA, Roth, etc. be split as well or does one keep his/her retirement assets?
3. If we divorce, would either have a claim to alimony if the other starts making a lot more money in the future?

Attorney answers (3)

  1. Donald Frederick Conviser

    Contributor Level 19

    2

    Lawyers agree

    Answered . Possibly. You could enter into a Post-Nuptial Agreement providing terms as you wish, drafted by an experienced Family Law Attorney, but I would admonish you that Post-Nups are extremely hard to enforce - much harder than Prenups. The Post-Nup could make retirement assets the separate property of the earner, and it could include Spousal Support waivers, but if it does, it should have fallback positions in it in case a Court were to hold that provision unconscionable, and it should have a severance clause as well. However, trying to do that might just get you back in the divorce arena, where you can have Spousal Support and Child Support obligations, be subject to Attorney's Fee orders, etc. Good luck.

    Please note that this answer does not constitute legal advice, and should not be relied on, as each situation is... more
  2. Adam Nathan Gurley

    Contributor Level 10

    2

    Lawyers agree

    Answered . I suggest amending your petition to a request for a legal separation and going ahead and getting a judgment on this legal separation that divides up property as you want and extinguishes spousal support for both parties.

  3. John Noah Kitta

    Pro

    Contributor Level 19

    1

    Lawyer agrees

    Answered . With a properly drafted post marital agreement your finances can be maintained ass separate and permanent even if you withdraw your divorce petition. This is not something you should consider drafting yourself. You will need to retain counsel. In your agreement to obtain an effective waiver of alimony/spousal support your wording and consent will have to be picture perfect. There are a number of conditions that will have to be met. All assets that have a community interest the community interest is split 50/50 unless you have an agreement approved by the court.

    This participating Attorney does not warrant any information provided, nor are we creating an Attorney-Client... more

Related Topics

Divorce

Divorce is the process of formally ending a marriage. Divorces may be jointly agreed upon, resolved by negotiation, or decided in court.

Deciding between a Divorce and a Legal Separation

A legal separation and a divorce are different because a separation does not end the marriage. Spouses live apart and remain married.

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