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

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 lf the divorce petition is withdrawn (to try again), is there a way to permanently split finances?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. 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 fact specific, and it is not possible to evaluate a legal problem without a comprehensive consultation and review of all the facts and court pleadings filed in the case. This answer does not create an attorney-client relationship.


  2. 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. 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 relationship by providing said information to you on this site. Nothing contained herein is intended to constitute, offer, induce, promise, or contract of any kind. The content provided is presented as a courtesy to be used only for informational purposes and is not represented to be error free. The Law Offices of John N. Kitta makes no representations or warranties of any kind with respect to its answer to inquiries, and such representations and warranties are being expressly disclaimed. Given limited facts, we are attempting to share relevant information concerning this area of the law as a public service.

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