Separation Agreements

What is a Separation Agreement?

A separation agreement is a contract between spouses that resolve issues related to the division of assets and debts, alimony or spousal support, child custody, and/or child support. A separation agreement may be called separation papers, marriage settlement, marriage separation, divorce agreement, or legal separation papers. Not all issues have to be included in an agreement. An agreement may be submitted to the court or filed with the court. Sometimes this is done as part of the divorce judgment. If a separation agreement is included as part of a divorce judgment it becomes an order of the court.

When is a Separation Agreement a Good Idea?

An agreement is an excellent idea if you and your spouse are on good terms. And you are both in agreement on important issues. If you have decided together how you would like your property divided, how much alimony is going to be paid and for how long, how you will share time with your children, and how much child support will be paid then it’s a good idea for you.

Is a Separation Agreement Required for Divorce?

Generally, an agreement is not required for divorce. However, in some states, a divorce prevents you from bringing claims for equitable distribution and alimony in the future. These claims need to be preserved before the divorce is granted.

What can be included in the Settlement?

Child Custody 

If there are children, a separation agreement may cover child custody and child support. The agreement may also provide for children beyond any legal support obligations, such as paying for their college education. We typically recommend that parents use a consent custody order for memorializing a custody agreement and child support rather than including these issues in a separation agreement. Because a separation agreement is a contract and not a court order, custody and child support are not easily enforced in an agreement.

Equitable Distribution 

A separation agreement can provide for how property and debt will be divided between the parties. The agreement can provide for how retirement accounts, 401K accounts, pensions, and businesses are divided.

Alimony 

Alimony payments should be specific as to amount, the frequency of payments, when payments will stop, and when alimony will terminate. The agreement can also specify whether alimony terminates upon the recipient’s remarriage or the payor’s death. It’s also a good idea to determine if alimony included in an agreement can be modified by the court at a later or date.

Is the agreement binding?

An agreement that is properly executed is binding. Each state has its own requirements for what makes an agreement binding. Generally, a separation agreement is binding if:

1. Signed by both parties in the presence of a notary public.
2. Entered into freely with each party.
3. Is not so unfair as to be egregious.

A separation agreement is a private contract between spouses. If either spouse violates its terms, the other may bring a civil suit for breach of contract. If the agreement is later incorporated into a judicial divorce decree, however, it becomes a court order punishable by contempt for noncompliance.

Because the separation agreement is a contract, each spouse should retain his or her own counsel to ensure they receive independent legal advice with no risk of a conflict of interest. Many lawyers will not represent both parties to a separation agreement for just that reason.

What is the difference between separation and a divorce?

Divorce happens when the judge signs the divorce judgment or divorce decree. Individual states have laws about how long you must be separated before the judge can sign the divorce judgment. The divorce judgment legally ends your marriage rights and responsibilities.

Separation usually means living separate and apart. You are still legally married until you receive the signed divorce judgment from the court. You could choose to reconcile, live separated, or divorce. You cannot remarry until you are divorced.

A separation agreement is often used to determine how you will share parenting time with your children, the amount of child support that will be paid, how your house, car, and retirement accounts will be divided, and whether anyone will pay alimony, the amount of alimony, and the duration of support.

Can I prepare an agreement on my own?

You can prepare and sign an agreement on your own. But the right question to ask is, should you do it yourself? You may do it on your own if there are no children involved and you own very little property and/or assets. However, it’s best to seek the legal help of a divorce attorney. If there are children, debt, property involved it’s especially important to have an attorney draft the agreement. It’s worthy to note that once this agreement is signed by both parties and notarized, it’s unlikely for the court to change what the parties agreed on.