What is a Separation Agreement?
A separation agreement is a document that lists and details each spouse’s rights when they intend to separate or divorce. The agreement can also settle issues between the spouses. It is a legally binding contract, not a court order, and is governed under contract law. Once the agreement is signed and notarized, you will find it challenging to have the terms overturned, so it should be drafted with thought, care, and, ideally, the advice of an attorney. The separation agreement can address any dispute or issue, so long as both partners can come to an agreement. For example:
- Property division and distribution of assets or items
- Child Custody, Visitation, Parenting Plan, Holidays, Activities, and such
- Child Support/Child Support Payments
- Spousal Support or Alimony
- Insurance (Health Insurance, Life Insurance, etc.)
- Decisions regarding children’s education, health. extracurricular activities, and similar
What Should Be Included in a Separation Agreement?
A separation agreement can include anything a couple wishes to address. Really, the sky is the limit as long as you can agree with each other on the terms. However, there are some issues which should be addressed when writing the separation agreement, at minimum:
Benefits of a Separation Agreement
Like so many things, you will save money by negotiating with your spouse now rather than going to litigation later. If you and your spouse can sit down together with a mediator (who can provide legal advice) and draft an agreement, you can potentially save yourself thousands in attorney fees later. The goal in drafting a separation agreement is to avoid drawn out battles over assets, child custody, property ownership/real estate, or anything else that will compel a couple to go to court.
Not only can a separation agreement save money, it can save time. Here again, a court battle to determine personal property rights, distribution of assets, or custody and visitation is a potentially long and nasty process you and your spouse will want to avoid if at all possible. It can take couples many months to resolve these issues in court, and they will be subjected to a much more hostile situation.
Court documents can become public records, something you and your spouse would be wise to avoid. In contrast, a marriage separation agreement is not accessible to the public. No one will have access to the document except you, your attorneys, and/or mediators who help you prepare the document and offer legal advice. Likewise, you, your partner, and even potentially your children will be spared testifying in court, where you may be forced to divulge details about your marriage, separation, and relationship that you would rather not share.
In a marriage separation agreement, you and your spouse can resolve any issues that are important to you, and you can resolve them in any way you like so long as you both agree. In this way, the separation agreement can be tailored to your unique circumstances. You can designate living spaces in the family home; you can divide small items, collectibles, or keepsakes; you can designate whether pets will remain with one spouse or the other; you can specify discipline for children. In short, the separation agreement can set rules and address issues that a court cannot.
What is the Process for creating a Separation Agreement?
If you have not already, you and your partner will need to decide whether you want to pursue legal separation or divorce. What’s the difference? Either a separation agreement or a divorce decree can determine custody, distribution of assets and debt, amount of support payments, and the like. The difference between separation and divorce is that divorce ends the marriage; separation does not. Some couples enter separation as a trial period, during which they live separately while considering whether the marriage should continue or proceed to divorce. However, if you know for certain that you do not wish to remain legally married, the separation agreement might be an added step you don’t need. These are important considerations, and you need to know and understand possible outcomes. The main downside to the separation agreement as opposed to starting the divorce process is time. If you do not wish to remain legally married and you know that is not going to change, the separation agreement can extend the divorce.
Next, spouses will get into the meat of the agreement and define the boundaries of the separation, such as who will remain in the family home, if living separate. You will address questions of debt and who will be responsible for it, who will retain assets, investment, manage accounts, and so forth. Couples should make a list of each item that needs their attention and scrutinize them one by one.
Both spouses will sign the separation agreement. Different states have different specifics about signing in front of witnesses, etc. and a lawyer can advise you, but the important thing to know is that after the separation agreement form is notarized, it becomes a contract. Both parties are expected to adhere to the terms laid out in the agreement.