Considering a Separation Agreement?

When you and your spouse officially separate, questions immediately arise. Decisions need to be made. From living arrangements to temporary financial support to a custodial schedule for the children and everything in between, prompt agreements can benefit both parties. Separation Agreements can establish the lay of the land and provide order and stabilization during a potentially uncertain or even chaotic time. Learn more about Separation Agreements and how they can protect you. 

do you need a separation agreement?

What the Separation Agreement Covers

Arising most often in a mediation setting, a Separation Agreement can resolve any open issue. It can be entered into before or after a Petition for Legal Separation or Petition for Dissolution (Divorce) is filed. Importantly, this agreement will not bind the Court in making future orders. Although the Court is likely to presume that the agreement terms were fairly developed with the best interests of both parties and the children, this is not a foregone conclusion. A Separation Agreement often includes the term “without prejudice” meaning that the terms do not constrain either party from seeking alternate orders in a litigation setting – if things fall apart. 

The Separation Agreement must be voluntary. Neither party should be coerced to sign. Violations of the Separation Agreement will not be enforced by the Court. If your spouse violates the Separation Agreement, the Court will not force him or her to comply. Any non-compliance issues or breaches will need to be timely resolved with a family law attorney. 

Some of the topics that are often addressed in Separation Agreements are:

  • Child custody (e.g. “parents agree to equally share physical and legal custody”)
  • Visitation arrangements  (e.g. “shared visitation in response to the child’s needs and wishes”)
  • Child support (e.g. “the parties to equally share the expenses of daughter”)
  • Spousal support 
  • Insurance
  • Property division (e.g. “parties agree to establish separate bank accounts with an advance distribution from community property made to each party”)
  • Inheritance
  • Debt payment 

Benefits of a Separation Agreement

Separation Agreements provide a common understanding at the beginning of the separation when tempers may be more contained. Merely the act of writing agreements down conveys a formality and understanding which provides more “teeth” than an oral agreement. Early written agreements could also set the tone and rules of operation for the entire case if skillfully drafted and endorsed by both sides. They could potentially save you a significant amount of time and money in the long run. Measures as simple as dividing bank accounts and opening new, post-separation accounts could save thousands of dollars incurred for a post-separation accounting. Litigation is often a time-consuming, arduous process. Resolving some or all of the issues listed above before trial can be beneficial to both your financial and mental health. 

The flexibility granted by Separation Agreements is another appealing aspect of this process. You can work creatively with your spouse to find solutions that meet both of your unique needs. A Separation Agreement allows you to require conditions that a judge often cannot. As a tool in mediation, parties will be encouraged to form interim or piecemeal agreements throughout the process. Diffusing hostilities and ending unrest on the “smaller” issues allows separating spouses to tackle the more polarizing aspects of the divorce likely to cause the most conflict.  

Privacy is another strong selling point. Court documents become public record. If you wish to keep the terms of your shared agreements private, you may choose to opt for a Separation Agreement.

How an Attorney Can Help

Whether you are drafting a Separation Agreement or reviewing one sent by your spouse, you are well-advised to work with an attorney representing you or working with you as a consultant. An experienced family law attorney will help you draft or scrutinize a Separation Agreement written by your spouse, his or her attorney, or your mediator, and ensure your needs are adequately met. For additional questions regarding whether a Separation Agreement can aid your divorce case, consult with an experienced family law lawyer local to your jurisdiction.