A separation agreement is a legal document that married couples conclude to regulate their rights and obligations concerning marital matters, such as child custody, marital property, and alimony. This contract is used when spouses decide they no longer wish to live together as a married couple but are not yet ready to initiate divorce proceedings.
A marital or marriage separation agreement provides an optimal solution for spouses experiencing difficulties in their relationship and wishing to continue living separately. It addresses various legal aspects of their marriage in a manner that serves the best interests of both parties and their children without immediately starting the divorce process.
Separation Agreement vs. Divorce: Key Differences
A separation agreement and a divorce are both legal options for spouses to formalize their decision to live separately, but these two mechanisms have distinct legal consequences.
Let's explore the key differences between these two.
A marital separation agreement, unlike divorce, does not terminate the marriage. Instead, the purpose of separation is to allow spouses to regulate their marital matters without initiating divorce proceedings.
While the separation agreement is in effect, the terms agreed upon by the spouses regarding marital relations, from child custody, spousal or child support, to property division, will determine how their marital affairs are managed.
A separation agreement can be overturned if both parties resolve their differences and agree to terminate it, choosing to resume their married lives. In contrast, once a marriage is divorced, it cannot be undone.
Additionally, one of the main distinctions is that while a separation agreement is in effect, spouses cannot enter into a new marriage. On the other hand, after a divorce, spouses are free to remarry if they choose to do so.
Types of Separation
There are three types of separation: legal, trial, and permanent.
Let’s explore each.
#1. Legal Separation
Legal separation and divorce are similar terms, but the main difference is that spouses are still legally married after separation until they go through a divorce process that ends with a divorce decree.
However, legal separation has a process similar to divorce, requiring spouses to complete court paperwork, pay fees, and await a court decision. This means that the legal separation process requires time and money, and if spouses want to officially divorce after separation, they will have to go through another legal process.
Most states recognize and allow legal separation, while there are exceptions, such as Florida and Texas. Additionally, some states use different terms for similar procedures, such as “divorce from bed and board” or “separate maintenance.”
#2. Trial Separation
A trial separation is a break that spouses take to assess their emotional and mental situation before deciding on their next steps. There are no legal proceedings, fees, or court paperwork—spouses simply want time apart to reflect on their relationship and personal affairs.
However, during this period, spouses can still use a separation agreement to settle financial and non-financial matters, ensuring no complications if they reunite or decide to file for divorce later on.
#3. Permanent Separation
Permanent separation occurs when spouses clearly and explicitly express that they no longer wish to live together and there is no chance of reconciliation. This type of separation often happens when they no longer reside in the same household but maintain a relationship mainly for the sake of their children, to shield them from the unpleasant divorce effects.
Permanent separation affects spouses’ rights and obligations, but the specifics depend on state law. For instance, property acquired after permanent separation is typically considered separate property, which affects how it will be divided after divorce.
Like other types of separation, spouses can use a separation agreement to avoid the default legal regime on their property and debts. However, such agreements are less common in cases of permanent separation due to strained relationships and a lack of effective communication.
What Information Goes on a Separation Agreement
A separation agreement should contain the following information:
Separation Agreement Provisions
Spouses’ personal information. This section includes both parties’ full names, addresses, and contact information.
Separation date. The separation agreement should clearly state when the spouses stopped living together. This is important as it has implications for their financial and family matters.
Living Arrangements. Spouses should specify where they will live during the separation. This is a flexible decision that can be tailored to their unique circumstances so they can live separately or even in their shared home.
Assets and liabilities division. This section outlines how the couple’s assets and liabilities will be divided. This includes real estate, bank accounts, vehicles, personal property, and debts.
Child support and custody. Provisions for custody arrangements are essential when the spouses have children. This section specifies who will pay child support, the amount, the duration, and the rights and responsibilities of the non-custodial parent.
Choice of jurisdiction. With the jurisdiction clause, the spouses choose the law that will apply to all aspects of the separation agreement and any dispute arising from it.
Reconciliation. When spouses believe reconciliation is possible, they should detail the steps for this process. This is a sensitive phase that can cause more harm than good, so it’s wise to include these provisions in the separation agreement.
Signature. Finally, the spouses should sign the separation agreement, which is recommended to be notarized for legality.
How to Create a Separation Agreement
To create a separation agreement, the spouses can use our Contracts.net builder and easily fill out the document by following these steps:
#1. Check State Laws
Before creating a marital separation agreement, it's essential to confirm whether the state law permits such contracts. Therefore, the parties should consult their state's family law or seek legal assistance from an attorney or a legal advisory organization.
#2. Fill Out Basic Information
The initial part of the separation agreement includes basic details about the spouses and their marriage. This section requires entering full names, addresses, contact information, marriage date, separation date, and details regarding any children.
#3. Provide Property Information
Here, both spouses should disclose information about their marital property. This includes identifying and describing all their assets—real estate, vehicles, or personal belongings. They also need to outline how the division of marital property will be handled, specifying who will receive each asset.
#4. Address Finances
This section covers the financial aspects of the agreement. Identify all sources of income and financial obligations—debts, investments, and loans. After that, financial arrangements among spouses should be determined, including how debt payments, loan terms, and more will be handled.
#5. Specify Spousal Support
In this part, determine who pays and receives spousal support. As well, specify the type of support—temporary (during separation) or permanent (after divorce)—along with the payment amount and duration.
#6. Outline Parties' Rights and Obligations Regarding Children
If children are involved, the spouses must include their mutual agreements on what is in the best interest of children regarding custody, child support, and visitation rights in the agreement.
The court will review this separation agreement during the divorce to ensure it aligns with the children's well-being and is a crucial component of the divorce proceedings.
#7. Review, Update, and Sign the Agreement
Once all terms are included in the separation agreement, review it thoroughly for completeness. Be sure to address any issues between spouses and make the necessary revisions.
Both parties should then sign the agreement. If the state requires it, the agreement should be signed before a notary public or witnesses. Keep a copy for future reference.
When Should You Create a Separation Agreement?
The most common situation when spouses should create a separation agreement is when they can no longer live together and maintain a normal marital relationship but are not ready to file a divorce petition.
Additionally, spouses do not have to create a separation agreement—it could be done after they have parted ways to formalize the financial and non-financial terms during that period until they decide on the next step.
Regarding the matters that a separation agreement can cover, spouses can use it to help themselves if they later decide to divorce or reconcile. A separation agreement allows them to clearly regulate rights and obligations regarding shared property, assets, and debts.
If they have children, the agreement will protect the children’s interests by specifying the duties and responsibilities of both parents. Another essential benefit of a separation agreement is that it can be used in the later divorce process if it meets all legal requirements and if judges decide that it is based on an adequate and fair deal between the spouses.
Do You Need a Lawyer?
Spouses do not need a lawyer when drafting a separation agreement. All they need to do is fill out a separation agreement template with agreed-upon terms and familiarize themselves with basic legal requirements.
However, this is not the case when spouses have significant assets, multiple children, joint investments generating income, etc. In such cases, spouses should consider hiring a professional to ensure their agreement on all important matters is within legal bounds and valid.
3 Mistakes To Avoid When Making a Separation Agreement
Spouses should be aware of the following three mistakes when making a separation agreement, as these can affect the legal validity of the document:
Separation Agreement Mistakes
Missing important information. Spouses must be careful when drafting the separation agreement and should include all necessary details. For example, if they leave out information about how assets and debts will be divided, serious problems can arise if one spouse refuses to pay the debts on their property.
Failure to have both spouses sign the document. A separation agreement cannot be considered legally binding if spouses fail to sign it. Therefore, both spouses must ensure they have signed the agreement.
Ignoring future changes. Spouses should incorporate provisions for adjusting the agreement in response to changes in circumstances (such as an increase in one spouse’s income or loss of a job). Failing to include these provisions can lead to an unfair separation agreement if such changes occur.
Final Thoughts
With a marital separation agreement, spouses can navigate the complex situations inherent in marriage, address numerous relationships and issues related to their marital property and children, and avoid the stress and burden of formal divorce proceedings.
Therefore, in a situation where spouses have decided their joint life is not feasible, this agreement provides them with sufficient time to consider all the consequences of ending the marriage and determine the best course of action: finalizing the divorce proceedings or working towards reconciliation.
