A separation agreement is an agreement entered into by a married couple regarding living apart for a period of time, either temporary or permanent. This agreement generally terminates the rights of cohabitation between the parties. However, it does not legally dissolve the marriage. Even if a separation agreement is in place, the marital status of the couple remains unaltered. These agreements may include terms related to:
- Alimony;
- Child support; and
- Management of financial matters.
If the spouses decide to live together again, their agreement may be canceled. Separation agreements are meant to have couples sort out their separation issues with the help of a mediator if necessary.
In general, separation agreements serve two important purposes. First, a separation agreement aims to outline the rights and responsibilities of the spouses between each other and creates a binding contract even before a judge enters a Judgment of Divorce. Second, a separation agreement proves that both spouses agreed to the separation. Sometimes a separation agreement can make it easier to get a judge to grant your divorce.
Difference Between a Separation Agreement and a Divorce
Separation and divorce have different legal consequences. They create different legal options for couples. Separation is usually considered as the first step towards a divorce. However, legally it significantly differs in its court processes. A judge does not need to intervene for a separation agreement to be finalized. A separated couple is still considered a legally married couple. It is more about taking the action to no longer be in a marital relationship.
Some married couples may decide to separate, intending to reconcile after some time apart. But a divorce involves more time in front of a judge to finalize a divorce decree. After a judgement has been granted for divorce, the couple is no longer married and permanently ends the spousal relationship.
Why Consider a Separation Agreement?
Many couples have different family dynamics and have to make decisions based on their circumstances. Some spouses may want to reunite after spending some time apart. Therefore, it depends on the situation and what you need as a legal option for your marriage. Below are some situations that will create a need for a separation agreement:
- If a married couple chooses to separate for some time but intend to remain married, allow them both some time apart and figure out how they want to proceed in their marriage. In this situation, an agreement can add value and help them create a temporary plan for daily needs till other financial details are sorted out.
- If a married couple decides to divorce, a separation agreement is useful for a couple because it allows them to manage their assets, debts, liabilities, properties, and other responsibilities, including their children. In this case, the separation agreement will usually merge with the divorce proceedings to become part of the judgment.
- Some couples may still want to have the legal status of being married but divide up the responsibilities and having the separation agreement provides them with that flexibility.
What Should I Include in a Separation Agreement?
Here are some common provisions or terms for consideration in a separation agreement:
- Spousal support: Acknowledging each party's contribution to the marriage and how that translates into payments for potential alimony. The payments may be calculated in accordance with a certain lifestyle created for the couples during the marriage;
- Child support: Including the details of child support and specific payment dates, how long the payments will go on, and also details of a child's health insurance;
- Assets: Having an understanding of each other's assets can include personal property like real estate and other items that the married couple jointly own;
- Debts: Including all the shared debt obligations will help clarify any disputes in the future;
- Benefits: IRA, 401(k), and other retirement plans may be useful to include and;
- Taxes: Taxes can be a complicated part of a divorce and clarifying what will happen in a separation agreement will ease that tension and stress that comes with figuring out taxes.
Information about the parties involved should include their full names and current addresses as well as identifying them as husband and wife. It should also contain the date and place of marriage.
Information about children of the marriage should include the name and age of each child born to the marriage. It should also include how child custody will proceed during the separation. The portion may also contain whether child support will be paid and in what amount.
The agreement should also contain information about the separation, including the date and reason for the separation. This portion should include the purpose of the agreement, the names of each party's attorney and a statement of consideration for the agreement.
Spousal support, also known as alimony, may also be included in the agreement. It should include support and maintenance provisions, if needed as well as security for the obligation. It may include a waiver by one party of all rights and claims for spousal support except as provided for in the agreement. It should also provide for changes in support in case of future changes in the economic situations of the parties. It may also provide for the effect of remarriage and/or death on spousal support.
If needed, the separation agreement may provide for the division of property. This portion may include a waiver of rights by each party of any and all rights and interests in the property and/or estate of the other. It may also include a waiver of rights by each party to administer the estate of the other, unless otherwise stated in a will made after the agreement.
This portion regarding property should contain a disclosure of all existing debts and an agreement by each party not to incur further debts and make the other spouse liable. It may also include an agreement by each party to accept the right of the other to own, acquire, manage, alienate, and/or will property as if they were unmarried. It may also include a provision for the preparation and filing of income tax returns.
The agreement may also include provisions outlining the effect of the agreement on a future divorce or dissolution of marriage. It may also include the effect of the agreement on the reconciliation of the parties. The agreement may provide for dispute resolution, such as mediation or arbitration.
Lastly, the separation agreement should include a provision for the execution of all instruments necessary to effect the agreement. It should include the date of the agreement and signatures of the parties. Each party's attorney should approve the agreements. If the parties desire, it may also include an acknowledgement by the parties.
Enforcing a Separation Agreement
Typically, if either spouse violates the terms of a separation agreement, the other spouse is allowed to bring a lawsuit to enforce the agreement. A couple's separation agreement can be incorporated into a divorce decree as well. After the separation agreement becomes part of a divorce order, it can be enforced through a hearing like the other terms of a divorce in the court.
However, a court may no longer enforce a separation agreement once a divorce decree has been entered. It is important to keep in mind that only the terms of the separation agreement that become part of the divorce order can be enforced by either spouse.
A separation agreement is usually only considered valid if it is fair for both parties. When creating a separation agreement with your spouse, it is crucial to keep assets separate and other items in a way that is just for both parties. The court will evaluate this further and there needs to be a showing of both spouses' signatures. The couples must sign the separation agreement, and there must be no pressure or duress while doing so.
It is recommended to seek consultation from an attorney to help draft the agreement to ensure all the provisions are included and serve the interest of both parties. If you and your spouse want to seek the help from the same attorney to complete your agreement, it is legal. But, having different attorneys can be a better option to ensure the judge does not question the validity of the separation agreement later on.
Furthermore, transparency from the beginning is highly encouraged especially in marital affairs, as it avoids the mistrust issues bound to happen later in the proceedings. Being able to disclose all the necessary details accurately can prevent any undue delay in the case. A separation agreement should disclose all assets and debts or it could be deemed fraudulent.
Benefits of a Separation Agreement
Benefits of a separation agreement include:
- Flexibility: Communicating with your spouse and collectively coming up with an agreement can be beneficial for both parties. It would allow for more flexibility for you and your spouse to include terms and conditions that were fair;
- Cost: If both parties are able to agree on certain provisions that are included in the separation agreement, that usually means less time in court for litigation or other divorce proceedings. This can save a sufficient amount of money for both;
- Time: When you have a document already in place that details the terms of your separation and specifies how the marital finances and responsibilities will be separated, you will most likely end up spending less time figuring it out in front of a judge and;
- Privacy: Unlike divorce proceedings, a separation agreement does not need to be filed in court. It remains a private legal document that only you have access to unless you grant someone the authority to view your agreement.
How can Parents Come to an Agreement Once They Separate?
Creating separation agreements in the midst of dealing with a difficult time involving children can be a challenging process. The children may be negatively affected if the parents include them in the high stress separation process.
Because of this, it is important for the parents to agree on certain terms early on to ease tension between the parties and to settle the living arrangements for the children following the separation. This will allow for a workable plan to be put into place which can ease the transition for the children.
What Decisions Should be Made Once the Parents Separate?
Generally, once a separation occurs between the parents, there are two main categories which must be decided immediately regarding children, their major life decisions and their daily activities. Some of the decisions in these categories may include:
- Education: Where the child will seek primary and secondary education;
- Health care: How the parents will ensure their child is able to stay physically and mentally fit;
- Food: Permissible food and non-permissible food;
- Religious beliefs: What religious practices the child will follow;
- Holidays: Will the child celebrate any particular holidays;
- Travel: Who is responsible for traveling arrangements
- Language: What languages will the children speak or understand; and
- Culture: Whether the children will follow any cultural practices.
It can be difficult to make major life decisions regarding a child but it is important to develop a plan early on and create structure for the child to easily abide by. The daily decisions are considered routine decisions related to daily aspects of the child's life.
The goal of creating an agreement governing the parenting decisions for the child is to have consistency in both of the homes. It is important to note that one parent may be more heavily involved in more of the financial matters because they are the higher earning parent.
In addition, one of the parents may be more responsible for the day to day activities because the child is residing with that parent. The living arrangements of the child or children will have a significant impact on which parent makes the decisions and how they are made.
It can be helpful to research state laws regarding child support and child custody when drafting a separation agreement involving children.
Who is Responsible for Making Decisions After the Separation?
Both parents will be able to choose how they want to proceed with the separation agreement and how to incorporate it into the decision making process. For example, the parents may agree to make joint decisions, which means there will be a fair involvement of both of the parents in discussing and deciding matters related to the child.
It may also be possible to agree to make sole decisions regarding different aspects of the child's life. For example, one parent may make decisions regarding school and the other may divide on health insurance.
These decisions may reflect the comfort level and cultural or religious preferences of each parent. Creating uniformity and stability for the child or children should be a priority during this process.
Living Arrangements for the Child after the Separation
One of the most important decisions parents will make following a separation is where the child will reside. This decision can be simple in some cases where they remain in the house where they were living previously.
This, however, is not always the case. Depending on the state, that living arrangement may not be considered in the best interest of the child.
Typically, the parents will have joint custody and the child will reside with one parent and the other will have visitation rights. In some cases, however, the child may reside in both homes for a specified agreed-upon time period and rotate between them on a schedule.
There has recently been a concept of the bird's nest, or family home. This means that the child will live in the family home full-time and each parent will commute to and from the residence.
When one of the parents resides with the child, the other resides in a separate place. This will shift the responsibility to the parents to adapt to the major changes which result from the separation instead of the child.
This concept, however, will not work for all families. For example, this arrangement may be expensive because three homes instead of two will be required.
It may also cause unnecessary tension because the parties are required to do more than just co-parent, for example household tasks include buying groceries and cleaning. Another option would be to consult with the child and find out which home they would prefer to live in.
Usually, a court will consider the child's living preferences if they are over the age of 12. It is well understood that the best living arrangements are those that prioritize the child's needs.
Discussing Changes of Circumstances after Separation Agreement
It is important to remember that after a separation agreement is drafted, the circumstances of the parties may change drastically. To request a modification of the agreement, a party must show a material change of circumstance.
The parties may include clauses in the separation agreement which address changes to specific situations that may avoid future conflicts. For example, the parties may agree to increase or decrease payments by a certain percentage of a party's income changes.
Situations which may impact an agreement include:
- Loss of employment;
- A change in employment;
- A significant salary decrease;
- Children's extracurricular activities have changed and more support is required to pay for these activities;
- The child relocated to a different residence;
- The child started attending a university or other colleges; and
- Other provisions or terms may be included to show that an event occurred that drastically affected the previous situation and requires a modification.
Proposed Separation Agreement
As with any contract, it is crucial to carefully examine it and understand the terms. It is important to keep in mind that it is still a proposal, the beginning process in the negotiation. Furthermore, you do not need to be intimidated by a deadline provided to you by your ex- spouse or their attorney. No one can demand you to settle until you are ready.
Therefore, if you need more time you can either communicate this to your spouse or request their attorney to do so. Generally, it is beneficial for you to act in good faith regarding the agreement. As stated above, it is advised to ask an attorney to review your spouse's proposed separation agreement. If you disapprove of some of the terms, an attorney can help you understand how far apart you are, and negotiate a better deal on your behalf.
Path Forward when Both Parties are in Agreement in terms of the Separation Agreement
Most likely, the agreement will not be specific as to your state's laws and may miss important legal provisions. States differ on the rules when it pertains to marital separation agreement. Therefore, it is critical that you discuss this earlier on to avoid any vagueness or confusion in the agreement terms. In some cases, you and your spouse may disagree on a provision. It is important to keep in mind that you can have an open communication in regards to trying to incorporate the both parties' wishes.
For instance, if your spouse and you have an agreement on the terms, then some couples decide to obtain only one attorney. You could do this, but it is not recommended. First of all, one attorney cannot represent both spouses because of the sensitive nature of the marital issues. If for some reason you decide to proceed without an attorney, you will not have anyone looking out for your interests and you can miss out on the clear understanding of your rights.
Additionally, if you and your spouse proceed without an attorney, he or she may be able to claim later that the agreement is unfair, or that they were not aware of what they were signing because they did not have an attorney involved.
If you and your spouse do agree on all issues in your divorce, your best option is to participate in divorce mediation, which is a process involving a neutral, third-party mediator. It is typically a family law attorney trained in mediation. The mediator works with both spouses to assist them in forming and finalizing an agreement. Sometimes, the mediator will draft the marital separation agreement and then the spouses can request their individual reviewing attorneys to take a second look.
How Can An Attorney Help Me With Separation Agreement
It is recommended that you hire a lawyer to prepare your marital agreement. If your spouse's attorney has already drafted it, you should hire an attorney to review it (on your behalf) and make sure important legal provisions are added, deleted, or corrected in order to protect your rights and interests.
For example, phrases like “sole legal custody,” “exclusive possession,” “timely indemnify and hold harmless,” and “relinquish and waive all future claims” have significant meanings. If you are not a legal expert in the area, you may miss those crucial details or problems with the proposed agreement.
Additionally, you may not know how to incorporate specific words to protect your interests. If you fail to review something, you may end up losing on the important aspects of the agreement. For due diligence purposes, you need to make sure a lawyer is able to assist with the process.
Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.
