Separation Agreements

A separation agreement is an agreement among a married couple about living apart for some period of time, either temporarily or permanently. The agreement may include terms regarding alimony , child support, and management of financial matters. If the couple decides to live together again, the agreement can be cancelled by the parties. A separation agreement is meant to have couples sort out separation issues with the help of a mediator if needed.

In general, separation agreements serve two important purposes. First, a separation agreement aims to outline the rights and responsibilities of the spouses between each other and creates a binding contract even before a judge enters a Judgment of Divorce. Second, a separation agreement proves that both spouses agreed to the separation. Sometimes a separation agreement can make it easier to get a judge to grant your divorce.

1. What is the Difference Between a Separation Agreement and a Divorce?
2. Why Consider a Separation Agreement?
3. What Should I Include in a Separation Agreement?
4. How Do I Enforce a Separation Agreement?
5. What are Some Benefits of a Separation Agreement?
6. Do I need a Family Law Attorney?

What is the Difference Between a Separation Agreement and a Divorce?

Separation and divorce have different legal consequences. They create different legal options for couples. Separation is usually considered as the first step towards a divorce. However, legally it significantly differs in its court processes. A judge does not need to intervene for a separation agreement to be finalized. A seperated couple is still considered a legally married couple. It is more about taking the action to no longer be in a marital relationship.

Some married couples may decide to separate, intending to reconcile after some time apart. But a divorce involves more time in front of a judge to finalize a divorce decree. After a judgement has been granted for divorce, the couple is no longer married and permanently ends the spousal relationship.

Why Consider a Separation Agreement?

Many couples have different family dynamics and have to make decisions based on their circumstances. Some spouses may want to reunite after spending some time apart. Therefore, it depends on the situation and what you need as a legal option for your marriage. Below are some situations that will create a need for a separation agreement:

• If a married couple chooses to separate for some time but intend to remain married, allow them both some time apart and figure out how they want to proceed in their marriage. In this situation, an agreement can add value and help them create a temporary plan for daily needs till other financial details are sorted out.

• If a married couple decides to divorce, a separation agreement is useful for a couple because it allows them to manage their assets, debts, liabilities, properties, and other responsibilities, including their children. In this case, the separation agreement will usually merge with the divorce proceedings to become part of the judgment.

• Some couples may still want to have the legal status of being married but divide up the responsibilities and having the separation agreement provides them with that flexibility.

What Should I Include in a Separation Agreement?

Here are some common provisions or terms for consideration in a separation agreement:

• Spousal support : Acknowledging each party’s contribution to the marriage and how that translates into payments for potential alimony. The payments may be calculated in accordance with a certain lifestyle created for the couples during the marriage;

• Child support : Including the details of child support and specific payment dates, how long the payments will go on, and also details of a child’s health insurance;

• Assets: Having an understanding of each other’s assets can include personal property like real estate and other items that the married couple jointly own;

• Debts: Including all the shared debt obligations will help clarify any disputes in the future;

• Benefits: IRA, 401(k), and other retirement plans may be useful to include and;

• Taxes : Taxes can be a complicated part of a divorce and clarifying what will happen in a separation agreement will ease that tension and stress that comes with figuring out taxes.

How Do I Enforce a Separation Agreement?

Typically, if either spouse violates the terms of a separation agreement, the other spouse is allowed to bring a lawsuit to enforce the agreement. A couple’s separation agreement can be incorporated into a divorce decree as well. After the separation agreement becomes part of a divorce order, it can be enforced through a hearing like the other terms of a divorce in the court.

However, a court may no longer enforce a separation agreement once a divorce decree has been entered. It is important to keep in mind that only the terms of the separation agreement that become part of the divorce order can be enforced by either spouse.

A separation agreement is usually only considered valid if it is fair for both parties. When creating a separation agreement with your spouse, it is crucial to keep assets separate and other items in a way that is just for both parties. The court will evaluate this further and there needs to be a showing of both spouses’ signatures. The couples must sign the separation agreement, and there must be no pressure or duress while doing so.

It is recommended to seek consultation from an attorney to help draft the agreement to ensure all the provisions are included and serve the interest of both parties. If you and your spouse want to seek the help from the same attorney to complete your agreement, it is legal. But, having different attorneys can be a better option to ensure the judge does not question the validity of the separation agreement later on.

Furthermore, transparency from the beginning is highly encouraged especially in marital affairs, as it avoids the mistrust issues bound to happen later in the proceedings. Being able to disclose all the necessary details accurately can prevent any undue delay in the case. A separation agreement should disclose all assets and debts or it could be deemed fraudulent.

What are Some Benefits of a Separation Agreement?

Benefits of a separation agreement include:

• Flexibility: Communicating with your spouse and collectively coming up with an agreement can be beneficial for both parties. It would allow for more flexibility for you and your spouse to include terms and conditions that were fair;

• Cost: If both parties are able to agree on certain provisions that are included in the separation agreement, that usually means less time in court for litigation or other divorce proceedings. This can save a sufficient amount of money for both;

• Time: When you have a document already in place that details the terms of your separation and specifies how the marital finances and responsibilities will be seperated, you will most likely end up spending less time figuring it out in front of a judge and;

• Privacy: Unlike divorce proceedings, a separation agreement does not need to be filed in court. It remains a private legal document that only you have access to unless you grant someone the authority to view your agreement.

Do I need a Family Law Attorney?

Deciding if you and your spouse needs a separation agreement is not easy. It can be difficult to navigate through all the emotional turmoil in making this decision. It is crucial to consider what your legal options are for drafting a separation agreement.

If your spouse needs you to sign a separation agreement, it may be useful for an experienced family attorney to review before you sign the agreement.

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Ken joined LegalMatch in January 2002. Since arriving, Ken has worked with a wide assortment of talented lawyers, paralegals, and law students to grow LegalMatch's Law Library into a comprehensive source of legal information, written in a way that is accessible to everyone. Prior to joining LegalMatch, Ken practiced Law for four years in San Francisco, California, handling a wide range of cases in areas as diverse as Family Law (divorces, child custody and support, restraining orders, paternity), Real Estate (property ownership, landlord/tenant disputes for residential and commercial property), Criminal Law (misdemeanors, felonies, juvenile, traffic infractions), Personal Injury (automobile accidents, medical malpractice, slip and fall), Entertainment (recording contracts, copyright and trademark registration, licensing agreements), Employment Law (wage claims, discrimination, sexual harassment), Commercial Law and Contracts (breach of contract, drafting contracts), and San Francisco Bankruptcy (chapter 7 personal bankruptcies). Ken holds a J.D. from Golden Gate University School of Law, and a B.S. in Business Administration from Pepperdine University. He is admitted to practice law before the State Bar of California, and the United States District Court for the Northern District of California. Ken is an active member of the American Bar Association, San Francisco Bar Association, and the California Lawyers for the Arts. Read More

Ken joined LegalMatch in January 2002. Since arriving, Ken has worked with a wide assortment of talented lawyers, paralegals, and law students to grow LegalMatch's Law Library into a comprehensive source of legal information, written in a way that is accessible to everyone. Prior to joining LegalMatch, Ken practiced Law for four years in San Francisco, California, handling a wide range of cases in areas as diverse as Family Law (divorces, child custody and support, restraining orders, paternity), Real Estate (property ownership, landlord/tenant disputes for residential and commercial property), Criminal Law (misdemeanors, felonies, juvenile, traffic infractions), Personal Injury (automobile accidents, medical malpractice, slip and fall), Entertainment (recording contracts, copyright and trademark registration, licensing agreements), Employment Law (wage claims, discrimination, sexual harassment), Commercial Law and Contracts (breach of contract, drafting contracts), and San Francisco Bankruptcy (chapter 7 personal bankruptcies). Ken holds a J.D. from Golden Gate University School of Law, and a B.S. in Business Administration from Pepperdine University. He is admitted to practice law before the State Bar of California, and the United States District Court for the Northern District of California. Ken is an active member of the American Bar Association, San Francisco Bar Association, and the California Lawyers for the Arts.