Question #36: We were married in Los Angeles, CA in late December of 2003. We are considering a separation but have several questions. We are expecting a baby in late June. I currently live part-time in CT and part-time in NYC and my husband lives full time in our NYC apt (rental). I am currently applying for jobs in NYC and Los Angeles. My husband has suggested an apartment share in NYC, so that we can raise the baby together at first. I am not completely opposed to this. My questions are as follows: 1. Can we be legally separated if we share an apartment and plan to continue cohabitating? 2. Can we discuss custodial rights in the separation agreement, in the case that I do decide to move to CA, where my family is? (My husband says he will agree to my living in LA if that is where my career takes me.) 3. My husband’s father recently added his name to a bank account to be used at our discretion (to help raise the baby). If we separate, can any of this money be allocated to our child? Can we make provisions for college funding, etc? 4. Because my husband had a poor credit history (he is from Greece and only started building his credit recently), the majority of our charges are to my account (not a joint account). Can we treat any debt, current and future, as if this is a joint account? 5. We have decided to try marital counseling. If we decided to reconcile, what steps are necessary to null the separation agreement? Can we make a post-nuptial agreement at the same time as the separation agreement, or is that redundant. If we reconcile, can we “transform” the separation agreement information into a post-nuptial agreement? How useful are post-nuptial forms? 6. We have adopted two dogs, and they are in my name. Can this be discussed in the separation agreement as well? 7. My husband and I each have assets previous to our marriage. Do we need to discuss any of these in a separation agreement?

From the nature of your questions it appears that a Post -Nuptial Agreement is what you are seeking rather than a Separation Agreement. If you intend to continue to live together as husband and wife then a Separation Agreement is inappropriate. All the other matters that you mentioned can be addressed in the Post- Nuptial Agreement which must be prepared by an experienced, matrimonial attorney in the New York. The matters are too serious to leave to self-help.

Please call me at 212-370-1660 to arrange to meet together and discuss the matters at greater length.

Leonard M. Weiner, Esq./Divorce Solutions