A separation agreement is an agreement between two married people who have decided to live separately or apart for an indefinite period of time. 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.
A separation agreement can be formed between a married couple through a private contract but is most often issued by a judge during legal separation proceedings. Many separation agreements are temporary arrangements in place for the time period between the legal separation and a formal divorce.
What is Contained in a Separation Agreement?
A separation agreement will contain the wishes of the parties involved as well as information about their marriage and how they wish to proceed during the separation. Most separation agreements will contain the following information:
- The parties involved;
- Children of the marriage;
- Separation information;
- Spousal support;
- Property and estates;
- Any changes to the agreement; and
- The parties confirmation and signatures.
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.
Are Separation Agreements Enforceable?
Yes, as long as the agreement meets the requirements of local contract laws. Agreements formed on the basis of fraud or undue influence will not be enforced. Agreements ordered by the court during a separation proceeding are enforceable.
In the event the parties cannot agree on the terms of a separation agreement, the court may create one for them. A separation agreement does not have to be filed with the court to be enforceable.
Can a Separation Agreement be Changed or Altered?
Yes, a separation agreement can be changed or altered if the needs of the parties change. If the agreement is a private contract agreement, the parties should ensure the changes satisfy the requirements for a valid modification of a contract. If the agreement is ordered by the court, the court will have to approve any modifications.
Is an Attorney Necessary to Help Draft My Separation Agreement?
Yes, it is important to have the assistance of an experienced family lawyer to assist in drafting your separation agreement. Separation and/or divorce can be extremely difficult and emotional experiences.
It is important to have an attorney review any agreements before they are signed to ensure they are enforceable and your rights are protected. An attorney may also assist you should any disputes arise from the agreement. They can represent you during any court proceedings, if necessary.