A couple enters a separation agreement if they voluntarily agree to live apart. A separation agreement can be used as evidence when filing for divorce. A separation agreement can include the following information:
- Terms of health insurance benefits;
- How the property will be distributed once the couple decides to separate
- The care, custody, and support of the children and;
- The amount of support one spouse will provide to the other;
The main difference between other marriage agreements and a separation agreement is that this contract does not end the marriage, nor are the parties free to marry. The couple is still considered husband and wife under the law.
However, a second agreement in writing may revoke the separation agreement or if the parties start living together again as husband and wife. It is important to note that residing together does not automatically revoke the agreement, but it only indicates your intention to rescind it.
Moreover, it is legal for the parties that fail to abide by it once it is finalized. Either party can sue for a breach of contract if one party. Incorporating the separation agreement into the divorce decree makes it more likely to be enforceable. The court will review the agreement and determine whether it meets the state regulations. The main priority for the court is to ensure that it is fair and the child’s best interests are protected.
Who Can Argue About the Validity of the Separation Agreement?
There could be many reasons to challenge the agreement, and below are examples of these:
- Coercion or Duress: If either party was forced or pressured into signing the agreement. The court will consider if they were given enough time to review it, and if it does not comply with the basic contract principles, then the court will not enforce the separation agreement;
- Fraud: Being transparent about your assets is key, and any action that hinders that will cause the agreement not to be valid and;
- Unfair and Inequitable: If the court determines that one party had the upper hand and the other party was treated unfairly, it will not be enforceable.
The separation agreement becomes invalid once the couple decides to live together again. Both parties have the freedom to reconcile and resolve their disputes. The couples can agree to specify this more in their contract and list the terms that would void the agreement. You can make it so that it needs to be signed by both parties in front of a notary for an official record.
Once you and your partner decide to divorce, you can utilize the separate agreement for your case. It also matters how your agreement was initially drafted. First, the separation agreement could state that it becomes part of the later divorce judgment. This is referred to as a merger. When a separation agreement states that it merges into the divorce judgment, the separation agreement is no longer a separate and enforceable contract after you are divorced and may be more easily subject to changes.
Additionally, the contract can state that it survives as a separation agreement after the divorce judgment. This is known as survival. When a separation agreement survives a divorce judgment, the agreement remains valid and is enforceable, separate, and distinct from the terms of the divorce judgment. If this is the case, they cannot modify unless the parties demonstrate that there exists an “extreme hardship” for them.
However, as mentioned above, there can be a combination of these aspects of the separation agreement. For instance, it can have some aspects of the merger and then some aspects of survival. But, the common rule is that the entire separation agreement would not be merged into the divorce judgment but would survive the divorce decree and can therefore be enforced separately.
Another important step to keep in mind in formulating these separation agreements is to hire your attorney. This will allow both parties to have individual representation that covers their interests without conflict of interests. This ensures that both parties’ legal rights are protected.
What Are the Limitations of a Separation Agreement?
Although it is useful to draft a separate agreement when needed, there are several limitations on what a separation agreement can do. First, even though it is a contract, it cannot bind third parties such as banks or financial institutions.
Next, the agreement cannot prevent one spouse from harassing the other. If there is a threat of physical harm, it may be better to seek other means available to victims of domestic violence. There can be a non-harassment clause inside the agreements, but it still may not be able to prevent certain incidents or individual behavior. Therefore, being aware of this reality with any court order is crucial.
Lastly, when it comes to child custody, visitation, and support, these can be modified by the court to serve the child’s best interests. Obtaining a court order is recommended to get binding and enforceable terms for the above issues. The judge wants to ensure that all the provisions set forth inside the separation agreement are fair and by the local state laws.
There will be situations that will require the presence of a lawyer, and therefore it is necessary to understand when to hire one. Even though several templates are available online for separation agreements, they might not always be the best solution in your situation. There are situations where each side should hire a lawyer to help negotiate agreement terms. Since a settlement agreement is a binding contract between parties, it will be enforced. Therefore, failure to follow the provisions will result in major legal consequences.
Moreover, the agreement provisions must be precise and enforceable. Doing this alone may not be the most effective method. Lawyers are equipped to tackle these issues, and seeking an expert in the field will benefit your case. Remember that there will be situations where it is impossible to negotiate without representation.
Attorney involvement in separation agreements may be required if the following occurs:
- The unique relationship between a husband and wife creates more sensitivities, and there could potentially be a power struggle that may prevent fair discussions;
- If there is any sort of physical or mental harm in the relationship;
- Only one party has representation from their attorney;
- There is force or pressure to sign the agreement;
- There are financial incentives or pressures from either spouse and;
- Obtaining an attorney can make it easier to sue the other party if they do not comply with the agreement. Searching for an attorney to defend a contract they did not draft is different.
When Do I Need to Contact a Lawyer?
If you want to draft a separation agreement, please seek a local family lawyer in your area to assist you with the process. As stated earlier, completing the contracting and negotiating process on your own is difficult, especially if you are in a vulnerable situation in your marital relationship.
Separation agreements can be complex and may involve many aspects of family law, but an experienced attorney can provide you with the legal advice and guidance needed for your claim. If you have any questions or inquiries, your lawyer can also provide the research and answers for those as well.
