Separation Agreement with Children

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 What is a Separation Agreement?

A separation agreement is an agreement entered into by a married couple when they decide to live separately for a period of time, either temporarily or permanently. These agreements may include terms related to:

Negotiating a separation agreement should help couples sort out their separation issues with the help of a mediator if necessary. Of course, if the couple has a child or children, they want to agree on the issues of custody, visitation, and child support.

A couple may agree to live separately and negotiate their own agreement regarding the issues that separation presents. Or, they may want to go to court to get a formal, legal separation. If a couple goes to court, they may still negotiate their own agreement on separation issues. If they are not able to come to an agreement on their own, then a court will decide on any issues that remain unresolved.

Separation agreements outline the rights and responsibilities of the spouses towards one another. If they are written properly, a court should enforce it. However, there is an advantage in this regard to going through a legal separation, especially if a child or children are involved.

For example, if one spouse promises to pay child support and/or alimony to the other, if there is a court order, the recipient spouse may more easily enforce a court order than a private separation agreement. This usually implies that a judge can force the delinquent spouse to pay. There might not be a legal separation or separation agreement followed by a court order. In this case, a person may have to go to court to obtain a court in any event in order to enforce a separation agreement.

Of course, in addition to the issues related to their children, the spouses also need to divide their marital property and their marital debt. They may need to decide what to do with the family home. One spouse may need to pay spousal support to the other, depending on the relative financial circumstances of the spouses.

How Can Parents Come to an Agreement Once They Separate?

Negotiating and documenting a separation agreement in the midst of dealing with a difficult time involving children may be a challenging process. Because of this, it is important for the parents to agree on certain terms early on. If possible, a couple might want to have an agreement with arrangements for child custody, visitation, and child support in place before the separation takes place.

They may each consult a family law attorney who could negotiate on behalf of each spouse. Or, they may want to try mediation, as noted above. In a mediation, a neutral third party works with the couple to help them come to an agreement that works for both of them. Many courts promote mediation in family law cases.

What Decisions Should Be Made About Separation?

Generally, once parents plan to live separately, there are three main issues that must be decided immediately regarding children: legal custody, physical custody, and the payment of child support. Legal custody is the right to make the major decisions about how the child is going to be raised. It involves such matters as the following:

  • Education: Where the child gets their primary and secondary education. Whether the child should go to college may also be addressed;
  • Health care: How the parents will ensure their child is able to stay physically and mentally fit;
  • Food: Whether the child would have a special diet of some kind;
  • Religious Affiliation: Whether the child would be involved in an organized religion;
  • Holidays: Whether the child is to celebrate any particular holidays;
  • Travel: Who is responsible for making travel arrangements;
  • Language: In which languages the child should be proficient;
  • Culture: Whether the children will follow any special cultural practices, e.g., practice a special dress code specific to a religion or culture.

It can be difficult to make major life decisions regarding a child, but it is important to develop a plan early on and establish a structure for the child. The daily decisions are considered routine decisions related to daily aspects of the child’s life. One parent may assume sole legal custody. Or they may wish to share legal custody and participate in decision-making together.

Physical custody addresses the issue of where a child is to live. The parents may agree to a sole physical custody arrangement in which the child lives with one parent and the other has a visitation schedule. Or they may want a joint or shared custody arrangement in which a child or children divide their time between the two parents’ separate households.

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. Again, it may help for each parent to consult a family law attorney for guidance. A family law attorney will be knowledgeable about the law in the state in which the spouses reside.

Another big decision that may affect the child or children of a couple who separate is the payment of child support. As in a divorce, if one parent is financially dependent on the other or has lower earnings than the other, then it would be necessary for the higher-earning spouse to pay child support to the other. Child support would also be indicated if one parent has sole or primary custody of the child.

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. As noted above, the parents may agree to joint legal custody. If this is the case, they would make joint decisions. Both parents would be involved 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.

What Will the Living Arrangements Be for the Child After the Separation?

One of the most important decisions parents must make following a separation is where the child will reside. This decision can be simple in some cases, such as when they remain in the house where they lived before the separation.

Of course, if the parents seek a legal separation by going to court, and they cannot agree on the issues of physical and legal custody, the court would decide these issues according to the best interest of the child standard.

Typically, the parents will have joint custody, and the child will reside with one parent while the other will have visitation rights. In some cases, however, the child may reside in both homes for a specified time period and rotate between them on a schedule.

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.

Can a Separation Agreement Be Changed After It Has Been Finalized?

It is important to remember that after a separation agreement has become final, the circumstances of the parties may change drastically. In this case, either of the parties may propose a change in the separation agreement.

If they have a formal, legal separation order from a court, they may petition for a modification of the agreement. In order to obtain a court-ordered modification of a court’s separation order, a party must show a material change of circumstance.

Situations that may arise and require modification of a separation agreement include the following:

  • One spouse’s loss of employment;
  • A significant change in the employment of one of the spouses;
  • A significant salary decrease or increase;
  • 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 college;
  • One spouse gets a new job in another state and would need to move to be close to their employment.

Of course, other changes to the life circumstances of the parties are possible and may necessitate a change in a legal separation agreement.

Do I Need the Help of a Lawyer for My Separation Agreement Issue?

If you are planning to separate from your spouse, you want to consult a family law attorney who can give you guidance. Your lawyer can help you identify the issues involved in separation and help you negotiate a resolution.

If you seek a formal, legal separation, your attorney will be able to represent you in court. can connect you to an experienced attorney who will best protect your rights.

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