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Waivers in Matrimonial Negotiations

Settlement agreements in matrimonial actions often include a waiver(s) of some sort in connection with the financial aspects of the case. A waiver is a knowing and voluntary relinquishment of a right or claim. Except in some limited circumstances, waivers are generally irrevocable. Thus, waivers should always be well-informed, deliberate and undertaken with the utmost certainty, with a focus on the benefits and consequences of such a surrender. The concept of waiver is often confused with a trading off of assets. The latter refers to circumstances where the assets at issue are of similar value. In this regard, one can say that each spouse is waiving his/her interest in a particular asset of the other while getting another asset of equal or similar value in return. In connection with a waiver, the surrendering spouse may not be receiving anything tangible in return. In rare circumstances, a litigant may advise his/her attorney to waive it all (aka give the other litigant anything he/she wants). Often times, this course of action is undertaken due to guilt (ie - adultery) or the desire to end the litigation expeditiously for a host of possible reasons, including, but not limited to: the desire to re-marry quickly or the avoidance of excessive legal expense. While these may seem like valid considerations in the moment, there must be a realistic assessment of the future financial consequences of the waiver. This is especially significant when the waiver involves support, and the waiving spouse lacks a reduced future earning capacity or when there are children involved whose needs will only increase as they grow older. A full discussion and exploration with your attorney regarding the waiver is critical. Salient inquires and considerations include but are not limited to: has there been sufficient and credible financial disclosure of all the assets and the reasons for the waiver. While you are certainly entitled to chart your own financial course during your divorce, your attorney, in his/her experience, can assist you in determining whether said waiver is prudent under your particular circumstances.

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