Husband filed for divorce but wife hasn't been served. They agree to stay married but live separately and he will pay support. If the wife is served does she have to file an answer even though they have an agreement
Yes and yes. If you do not file an answer, he may request entry of default and an equitable distribution hearing. And yes, the two of you can draft what under the circumstances might be considered either a postnuptial agreement of some variety of a marital settlement agreement. You should consult with an experienced family law attorney because time may be an important factor here.
There are two ways to go with this. The first may be a Judgment of Separate Maintenance where the two of you remain married or a Divorce Decree. In either case, you can continue to live together even after the Agreement is signed and put into effect. There is no requirement that divorced couples must live in separate homes. You should seek the assistance of an attorney in either case.
Was this answer helpful to you? If so, please click "helpful". However, keep in mind that this advice is based purely on the little bit of information that you have given to me. There certainly may be other factors that would change my opinion. Further, no one can rely on advice from an attorney who has not been retained. You will only be able to rely on advice from an attorney who you have actually retained. I offer a free one hour consultation to any potential client who has a matter in my practice areas and geographic region. Good luck! Rob Gleaner
Review your situation with an experienced divorce attorney to be sure that you are adequately protected. Some people enter into these agreements thinking they may reconcile. Others enter into them thinking the other will never take action to finalize the divorce. You cannot prevent one another from finalizing a divorce at some future time. There are provisions that can be built into an agreement that help to protect you when that happens if the agreement presently is that neither intends to complete a divorce forever or for a fixed period of time. Entering into such an agreement usually triggers the "end" of the marriage for equitable distribution and other issues which rely upon the partnership theory. Conditions for termination of spousal support and retirement issues should be fully detailed in the agreement to avoid future enexpected consequences.
It is dangerous to ignore a filed divorce complaint. He could withdraw it. He could fail to move forward on it and the Court will eventually dismiss it. He could amend it to a divorce from bed and board, reserve it and complete it, or he could enter a default and complete the divorce if you do nothing. Unless you fully understand the process or there is total and complete good faith involved by the plaintiff who filed the complaint you could have unanticipated consequences. There are some people whose good faith is reliable. Unfortunately you often don't know who those people are until it is too late to protect yourself, which is the role of legal counsel. You may want to both work with a mediator on the terms of this agreement and use separate legal counsel as advisors.
You have to file an Answer, unless he dismisses the Complaint. And yes, you can agree to remain married and execute an agreement detailing your financial relationship.
Legal disclaimer: In accordance with the Avvo community guidelines, this communication does not constitute "legal advice", nor does it form an attorney-client relationship.
That is feasible. An attorney would write the agreement. If you do not file an answer a deafault can be entered and a final judgment of divorce can be entered by default. You need to hire an attorney.
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