Getting a legal separation requires the same process as a divorce. You must submit to the court your agreements as regards spousal support and your assets and debts (and if you have minor children, a parenting plan and child support). When the legal separation is granted, all of these financial matters have been resolved (by court order) but you are still married.
Prenups and postnups are not normally submitted to the court unless they are relevant to a divorce or other legal proceeding. Done correctly, they are private binding contracts between the spouses. They may well be submitted to the court in a later divorce proceeding if the divorce is contested.
Cancel a Prenup, Postnup or Legal Separation?
Is it possible to reverse or cancel a legal separation, prenup or postnup? Perhaps. The easiest way would be if both spouses agree without any duress to do so. Then a lawyer could help you draw up a document for signature that cancels or modifies the prenup or postnup. Each spouse should be sure to obtain legal advice to ensure the cancellation will be valid.
If both spouses agree to cancel the terms of a granted legal separation, a paralegal or attorney could draft for you a “Motion to Vacate Order of Legal Separation” for you both to sign and an “Order to Vacate Order of Legal Separation” for the judge to sign. You would attach your Legal Separation judgment.
If the judge has not yet granted your Legal Separation, you can’t “vacate” it because it doesn’t yet exist. Instead you would need to file a “Request for Dismissal” (form CIV-110).
It may also be possible to accomplish a non-agreed cancellation if there was some significant impropriety in the way the prenup or postnup came into being or in the legal separation process. There are certain conditions that need to be met for a prenup or postnup to be binding. These include full and accurate financial disclosure and each spouse having the benefit of legal counsel. Similarly, full and accurate financial disclosure is part of the legal separation court process. If this was not done, the granting of the legal separation could be challenged in court on that basis.
If the spouses don’t agree to cancel the prenup, postnup or legal separation, and there was no impropriety in their creation, there probably isn’t a way to cancel them. However, you might benefit from obtaining advice from a family law attorney on your particular situation.
