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Separation Agreement

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.)
  • Debt
  • Decisions regarding children’s education, health. extracurricular activities, and similar
gravel and a ring on the table
lawyers discussing contract together

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:

Custody

If you are a parent, then undoubtedly it will be important to you to determine whether your children will live with you or your spouse during the separation and beyond. You can also use the agreement to specify visitation, which parent will take children to school or activities, where children will spend significant days, how birthdays, graduations, and other events will be handled, whether children will attend religious institutions or organizations, etc.

Child Support

If you or your spouse will be paying child support, it’s wise to specify the amount in the separation document. Reaching an agreement on child support at this juncture will avoid taking the matter to court later, something most couples would prefer to avoid.

Spousal Support

Like child support, spousal support–if any–should be specified in the separation agreement. Since the terms of these agreements are so flexible, couples are not limited to monetary support. Perhaps one spouse will pay a utility bill or agree to upkeep on a piece of property or living space. This document allows couples to come to any consensus that works for them, though they should keep in mind that once it is signed and taken to a notary public, the separation agreement becomes a binding contract.

Division of Property and Debt

A separation agreement should document how property, assets, or other items that are meaningful to either spouse will de distributed. Separation agreements can include anything that is meaningful to either of you, as this can avoid conflict later. It should also address who will take over any shared debts or how payment of debts will be handled.

Miscellaneous

As has been mentioned, a separation agreement can address any issue important to you both.

While it’s not legally necessary, it can be beneficial to seek the advice of a divorce attorney or a mediator familiar with separation and divorce before you have your agreement notarized.

You can also download a sample separation agreement to guide you in drafting your own.

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.

gravel and a ring on the table
lawyers discussing contract together

What is the Process for creating a Separation Agreement?

While the process is fairly straightforward, you must keep in mind that the separation agreement will become a binding contract, and you will be expected to adhere to what is laid out in the agreement in terms of spousal support, visitation rights, property division, health insurance, division of any wills or trusts, and so on. While you can download a generic separation agreement from the internet, this will become a binding document, so it’s worthwhile to have a lawyer or someone who can provide legal advice review the agreement.
 
The most difficult part of the separation agreement may be simply getting both parties to agree on custody, visitation, distribution of assets, debt, and the like. The list above provides some key elements that should be included in a separation agreement, but it is by no means exhaustive. Both parties will have different wants, needs, questions, and concerns. Every case is different, so a generic separation agreement will only take you so far. The real work of drafting the separation agreement–or of any divorce mediation–is communication. When you embark on a legal separation or any stage of divorce, you will need to sit down with your partner with an open mind, a willingness to listen, and a readiness to compromise.
 
If you have decided to proceed with the separation agreement, you will follow this general framework:

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.

While a separation agreement can be drafted and filed without attorneys, the implications of the agreement can have profound consequences on the future of either party. It’s never a bad idea to consult with a lawyer or law firm about the agreement. After all, it’s better to attend to any potentials problems before the agreement is notarized, after which making changes will be much more difficult.
 
You can each take the separation agreement form to your own attorney, or both parties can seek a neutral third party familiar with the law and how it applies to such agreements.

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.

How does having separation agreements affect parties who ultimately decide to end the marriage through divorce? How will the terms laid out in the agreement possibly affect what each party claims in the divorce?
 
Depending on the state you live in, spouses may be required to live apart for a certain amount of time–usually six months to a year–before they can be awarded a divorce judgment. Or you could live in a state where separation agreements convert to divorce after a length of time. In these circumstances, the agreement is a step in the divorce process, and the agreement helps define your rights and obligations during the separation period.
 
Depending on the goals spouses have and the state in which they live, the terms of the separation can continue indefinitely, allowing the parties to remain married on paper while living individual lives, it can be a necessary step on the road to divorce, establishing boundaries during the obligatory period, or it can convert to divorce after spouses wait for the time ordered by the state.
 
An attorney can advise parties on state law and how it pertains to their situation.
 
Depending on the state, the agreement is reversible for a time if the parties reconcile. If the parties divorce, they are no longer spouses under the law.
 
When considering a formal agreement to separate, parties should contact an attorney, law firm, or company qualified to offer advice.