Free Marital Separation Agreement Forms [PDF Download]

Do not allow the complex issues of separation to overwhelm you. Download our free marital separation agreement template and proceed with confidence.

There are times when married couples cannot deal with issues that come along with married life and want to do something about them. In cases where married life seems impossible, separation should be the next logical step.

A separation will provide enough time for spouses to think and find a way to repair their marriage or give them time to prepare for divorce. Whatever they decide, there are some terms that should be set so that the separation period goes as smoothly as possible.

What is a Marital Separation Agreement Form?

A marital separation agreement form is a legal document that married couples use when they decide they no longer want to live together but do not want to start the divorce process.

The agreement helps them establish certain rules between themselves concerning their legal rights and obligations. A document can cover various matters that are important for separation, like child custody, spousal support, or the division of marital property.

A separation agreement is convenient in cases where there is a possibility of reconciliation because it does not end the marriage. Spouses remain married and still have some benefits of married life, like joint health insurance.

Do You Have to Be Married to Make a Separation Agreement?

Yes, you have to be married to make a separation agreement. To make a legal separation and change your marriage status from married to separate, you must be married.

However, couples who are living together and not married can also make a separation agreement, but it cannot be filed in court. It will be more like a private contract between two parties that is legally binding, just like any other contract.

Separation Agreement vs. Divorce

The main difference between a separation agreement and divorce is that after separation, spouses are still married and cannot marry anybody else. There is still time for reconciliation, meaning that the separation agreement can be revoked.

Divorce, on the other hand, is final. After the divorce process, there is no option to ask the court to revoke it, and divorced couples can marry whoever they want.

Marital Separation Agreement Form by States

Pros and Cons of Creating a Marital Separation Agreement

Before filing for marriage separation, spouses should carefully consider several factors to make sure they are doing the right thing. A marriage separation agreement offers numerous benefits in cases where marriage seems irreparable.

Here are a few:

Benefits of Marital Separation Agreement

First of all, a separation agreement brings clarity. This is a relief, especially in complicated marriages where important issues are ignored. After spouses divide marital property and define obligations, everything will be clearer, and they can start planning their future steps.
A marital separation agreement, in most cases, can be used in the divorce process. If the court decides that the agreement is fair for both parties and that legal requirements are met, it will include it in the divorce process. This helps a lot because it reduces legal fees and provides a smoother transition.
Finally, a separation agreement can be revoked if spouses decide to reconcile. This is helpful when spouses are not completely sure whether separation or divorce is a good idea. They have the option to try to fix their marriage if they change their minds.

However, there are also some issues involved in a separation agreement, like:

Misunderstanding, where couples without legal assistance make an agreement that is not fair to both sides or does not meet the legal requirements. While a marital separation agreement template usually includes all information concerning separation and is very simple to use, in some cases, legal assistance is necessary to ensure fairness.

Disadvantages of Marital Separation Agreement

Lack of legal enforcement. In some states, legal separation is not recognized, and it cannot be filed in court. In these cases, spouses should draft the agreement and sign it in the presence of a notary public to make it legally binding.
Spouses cannot remarry. This is important when spouses start seeing other people and want to get married again.

What’s Included in a Marital Separation Agreement?

A marital separation agreement includes various matters important for the separation process that define terms and obligations for both spouses. The content of the agreement could vary depending on the circumstances and laws of the state.

Marital Separation Agreement Requirements

#1. Information of the Parties

The separation agreement should provide information about the parties at the beginning of the document. In this way, it is clearly stated who the people involved in the separation process are.

Basic information like the names of both parties, their current addresses, or their marriage dates should be provided in the document. Usually, copies of the identification documents, like an ID card, passport, or driver's license, should be included for verification purposes.

Additionally, if there are third parties involved during the signing of the separation, like witnesses, legal representatives, or the notary public, their information should be provided too. Notary public’s information and seal should be included for authenticity reasons.

#2. Separation Date

Including the separation date is very important and sometimes even required by law. It provides the date when the spouses physically stopped living together. In situations where there is a time limit on the separation period, specifying this information is mandatory.

The separation period can last from a couple of months to 2 years, and after that, spouses need to initiate the divorce process or attempt reconciliation.

Legal requirements regarding separation differ from one state to another, so legal assistance is advisable in cases where spouses are not sure they understand the legal process for separation.

#3. Living Arrangements

This segment should specify where the spouses are going to reside during the separation period. This can vary depending on marital property and circumstances. Spouses could decide to live together in their marital home even though they are separated.

This can happen due to a financial situation. Usually, one spouse stays at the marital home with children, if there are any, and the other finds temporary housing. These details should be included in the separation agreement, along with information about restrictions.

Information about restrictions like access to a marital home or shared assets should be added to the agreement to avoid any misunderstandings and provide safety to both spouses during the separation period.

#4. Child Support & Rights

Provisions regarding child support and rights are very important for the well-being of any children involved. Spouses should specify financial support for children, and that includes information on which spouse will pay the support, how much, how often, and how long.

Decisions should be made based on the income of the spouse who provides child support. Child support should cover some basic children’s needs, like food and clothing, as well as education and healthcare.

Agreements about child custody should include information on who the children's guardian is, the visitation schedule, and the rules for a spouse without custody.

#5. Assets Division

First of all, spouses need to separate marital assets that are acquired during marriage from separate assets that are acquired before marriage, through inheritance or gift. A list of all marital assets should be provided, including vehicles, real estate, jewelry, or bank accounts.

When everything is listed, spouses need to divide the marital property in a way that is fair for both parties. Debts should also be included in the document, and spouses need to address this matter and share the financial responsibility.

Matters of property division, when concluded, will make the divorce process much easier and less stressful.

#6. Choice of Law

Spouses need to state in detail which jurisdiction’s laws will apply to the agreement. This could be the state in which the spouses were married, the state in which they currently reside, or another jurisdiction agreed upon by both parties.

The laws of the chosen jurisdiction should be included in the document. Here, the included laws can be related to child support, marital property, or other relevant matters. It should be noted that both parties willingly agreed to select jurisdictions and laws.

Legal assistance is advised in cases where spouses are not sure about jurisdictions and applicable laws.

#7. Merger and Incorporation

Merger and incorporation are legal principles referring to the way a separation agreement is used in the divorce process. A merger means that a separation agreement becomes part of a divorce decree and loses independent legal significance.

On the other hand, incorporation is similar to a merger, but when a separation agreement is incorporated into a divorce decree, it can be enforced like an agreement and not like a divorce.

Choosing to merge or incorporate a separation agreement will depend on legal requirements, spousal preferences, or the complexity of the agreement.

#8. Reconciliation

Reconciliation clauses in a marriage separation agreement specify the steps and circumstances under which a couple may try to resolve their differences. The first thing both spouses must do is state that there is a possibility for reconciliation.

After that, specifics should be provided about the duration of reconciliation, living arrangements, or behavior rules. Spouses can arrange marital counseling to help them address the issues in marriage.

However, the terms for the termination of reconciliation should also be included in the agreement to define when the marriage should be considered over and what the next steps are in the separation process.

How to Write a Marital Separation Agreement

A marital separation agreement is a legal document that helps married couples address various matters of the separation process. A separation agreement can be written with the help of a legal representative or by using a marital separation template and filling it out yourself.

Step 1: Check if the State Allows Judicial Separation

To check if the state allows judicial separation, you should consult the statutes or laws related to family law in your jurisdiction to find out if your state permits judicial separation. Statutes of a state are digitized and can be found online.

Another way to get informed about state laws is by seeking legal assistance. This is a little bit costly, but it provides the best legal approach to the process. Sometimes there are voluntary organizations that offer free legal advice.

Judicial separation, sometimes referred to as legal separation, allows couples to live apart yet maintain their legal marriage by having a formal order from a court defining their rights and obligations.

Step 2: Fill out the Parties’ Information

The first part of the separation agreement is reserved for the information of the parties. Here, the names of the spouses that are in the separation process are provided. Contact information for both spouses must be provided. Usually, the current address and phone number are enough.

The next part of the document is about additional information that is relevant, like the date of marriage or separation and the number of children.

It is important to mention that sometimes state requirements demand that a third party be present during signing. This means a witness or legal representative should be present, and they need to sign the document and leave necessary contact information, too.

If notarization is required, the notary public will have to sign it with a stamp and date.

Step 3: Provide the Property Information

Both spouses should provide a list of marital property that includes real estate, vehicles, or personal property. Sometimes the list should contain a brief description and value of the item. A precise valuation may not be possible, so for a current value, an estimate is acceptable.

Additionally, a specification on how marital property will be allocated must be provided. This will include dividing the assets by their value and the spouse's financial needs and contributions during marriage. If there are some issues in this process, seeking legal aid is advised.

Step 4: Provide Information on Spousal Support

There are two types of spousal support. The first is temporary spousal support, which only lasts during the separation period, and the other is permanent support following divorce. Spouses should establish the type of support, as well as who is the “supporting” and who the “supported” spouse.

The length and amount of spousal support depend on a variety of factors, including the length of the marriage, each spouse's income, their contribution to the marriage, and their standard of living. Note that spousal support can be modified if circumstances change.

Additionally, conditions for termination of spousal support should be provided, like the death of a spouse or the remarriage of a supported spouse.

Step 5: Outline What Happens With Children

Spouses with children should decide who will take care of them with their well-being in mind. The court will review the child custody provisions in a separation agreement during the divorce process and accept them if they seem fair to both parties.

The visitation schedule and rules must be agreed upon for spouses without custody. Another important matter is child support, where one spouse will pay the other spouse financial support for the children. This support should cover children's basic needs, education, and healthcare.

Matters concerning children should be reviewed by a legal representative to ensure that the document is in compliance with the laws and that the children's well-being is in focus.

Step 6: Sort Out Finances

To ensure fairness and clarity for both parties, sorting out finances in a marital separation agreement involves dealing with a number of financial issues. The first thing to do is to identify debts, bank accounts, investments, and other liabilities.

Then a value must be determined and allocated between spouses. Health coverage needs to be agreed upon for both spouses and children. This includes medical bills and prescription costs.

If there are joint retirement accounts, a plan should be made for how to divide them.

Lastly, the tax implications of financial arrangements should be considered.

Step 7: Iron out the Final Details

When everything is specified in a separation agreement, it should be reviewed to see if it is missing something. Any unresolved issues between spouses should be addressed and resolved.

An attorney can take a look at a document to make sure that all matters comply with laws and requirements. A legal representative can also give advice on how to resolve issues differently or how to make the document more clear.

Proofreading is also important to make sure there are no errors. If everything is fine, the spouses can sign the agreement and keep a copy for future reference.

How Can a Marital Separation Agreement Be Revoked or Voided?

A marital separation agreement can be revoked or voided in a few ways, depending on circumstances or jurisdictional laws. The most obvious is to revoke the separation by mutual agreement.

Spouses can draft and sign the document in which they state that they want to revoke the separation agreement and file it for notarization to become legally valid. Another way is for the court to find proof that one spouse was tricked into signing the agreement.

If there is evidence that one spouse withheld information or threatened the other spouse, the court will have to void the agreement. In situations where one spouse is intoxicated, mentally incapacitated, or under the influence, the agreement must be revoked.

The court may refuse to enforce the agreement if there is evidence that one spouse has a bargaining advantage and the terms seem unfair and one-sided.

What Happens if One Party Violates the Marital Separation Agreement?

If one party violates the marital separation agreement, the other party can seek enforcement of the agreement provisions through the court system. This is done by filing a motion with a court asking for the enforcement of agreed-upon provisions.

Some agreements already include financial compensation for violating the terms or obligations of the agreement. Sometimes circumstances can change; for example, a financial situation can change drastically for one spouse.

In this case, the other party may seek modification of the agreed-upon terms. If a party violates a court order on purpose, they might be found in contempt of the court. Penalties in these cases include fines or even prison time.

Marital Separation Agreement FAQ

No, a legal representative is not needed for a marital separation agreement. Spouses can draft their own separation agreement just by using the separation agreement template. However, lawyers are much more qualified to handle separation matters.
When one partner dies, certain provisions of the separation agreement will be terminated, while others, like the property of the deceased, can be inherited by the other spouse. This is due to the fact that even separated spouses are still married.
A marital separation agreement is enforced through court proceedings. Before asking the court to enforce the agreement, spouses may address this issue in informal ways. This includes sending a letter with a request for compliance or communicating through lawyers.
No, usually, a separation agreement does not need to be notarized, but it will add an extra layer of protection. It should be noted that, in some states, notarization is mandatory.
Yes, you can get divorced without a separation agreement. However, the divorce process is much easier with all the matters agreed upon in a separation agreement. It is important to note that the legal fees will be lower as well.
Depending on the jurisdiction and the particular circumstances of the parties involved, a separation agreement may or may not need to be filed in court. For an agreement to be enforceable against the parties, it is usually not necessary for it to be filed with the court.