Separation Agreement

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What is a Separation Agreement?

A Separation Agreement is basically an agreement between a married couple who have decided to live apart for an indefinite period of time.  The separation agreement usually terminates the rights of cohabitation between the parties.  However, a separation agreement does not legally dissolve the marriage, and the marital status of the couple remains unaltered.

Separation agreements may be formed between two married people through the use of a private contract between the two.  However, separation agreements are more commonly issued by a judge in connection with legal separation proceedings.  Most separation agreements are temporary arrangements that deal with the time period between legal separation and formal divorce.

What is Contained in a Separation Agreement?

Separation agreements usually cover such topics as alimony, child support, custody and visitation arrangements, and management of bills and debt.  The separation agreement may also contain provisions dealing with the control of assets, such as bank accounts. 

A separation agreement can also outline the division of property if it appears that the separation may be permanent.

Are Separation Agreements Enforceable?

Separation agreements that are formed privately may be enforceable between the parties according to contract laws.  This means that the separation agreement must meet all the requirements of a valid contract if it is to be enforceable under law.  Separation agreements that are formed on the basis of fraud or undue influence will not be enforced.  

More commonly, a separation agreement becomes enforceable if it was ordered by a judge during legal separation proceedings.  During separation proceedings, the couple can usually file a separation agreement with the judge for approval.  If the judge approves it, then the agreement becomes legally binding upon the parties.

In the event that the parties in a separation hearing cannot agree upon the terms of separation, the judge may create a separation agreement for them.  The resulting court-ordered agreement must then be obeyed by each party.  However, separation agreements do not need to be filed with a court in order to be considered enforceable.   

Can a Separation Agreement be Changed or Altered?

A separation agreement can sometimes be changed or altered according to the needs of the parties.  If the agreement was contained in a private contract, the parties would need to make sure that the changes satisfy the requirements for a valid modification of contract.

Again, if the agreement was ordered by a judge, the parties would need to have the judge’s approval before the changes or alterations will take legal effect.

Do I Need a Lawyer for a Separation Agreement?

If you are contemplating separation from your spouse, you may wish to speak with a lawyer for advice.  A family law attorney can assist you if you need a separation agreement.  Your attorney can help you draft, edit, and review any separation agreements according to contract laws. 

Or, if you will be formally filing for legal separation, your lawyer can help review a judge issued agreement to determine your rights and responsibilities under the court order. 

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Last Modified: 06-30-2011 02:59 PM PDT

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