A marital separation agreement does not have to be filed in court to be legally binding on the husband and wife. The agreement is basically like a contract between two people. As long as the husband and wife are legally able to enter into a contract, they can make a marital separation agreement. It is important to note that some states require the agreement to be notarized in order to be enforceable.
If the couple decides to get a divorce, they can ask the court to make the marital separation agreement part of the final judgment legalizing the divorce.
If the couple does not file the agreement in court, it is still enforceable like any other contract. If either spouse violates the agreement somehow, the other spouse essentially has two options:
- Sue for breach of contract and recover money damages.
- Ask for the court to order specific performance, forcing the breaching spouse to follow the agreement.
If the agreement was made a part of the final divorce judgment, it becomes an official court order. Like other court orders, if it is violated, the spouse can be held in contempt by the court.
Each couple’s situation is different, and involves different legal issues that must be taken into account when the couple separates. A family law attorney can assist you in the many steps involved in a legal separation, including drawing up an enforceable marital separation agreement, and helping you decide which direction to take your case.