Separation Agreements are, quite simply, agreements between spouses that allow you both to decide everything you want to with regard to your children, spousal support, assets and debts upon separation. A Separation can also be obtained by suing for separation, rather than suing for divorce, which one might consider if the other party is unwilling to work out a settlement and you do not want to sue for divorce at this time for some reason. There are grounds for separation, just like there are grounds for divorce, though such actions are extremely rare.
Separation Agreements require both sides to be willing to sit down and negotiate a settlement. After all, an Agreement is exactly that. If one party is unwilling to agree, then there is no point in proceeding down this road. If both parties are willing to try to work this out without the intervention of the Court, then this is a much less expensive way to proceed, both financially and emotionally. Just remember that you cannot force someone into negotiating with you.
Just like a divorce entails various issues, so does a separation agreement. In general terms, they allow both parties to live separate and apart without interference from the other, as if they are unmarried; they generally waive each other out of rights to the other’s estate which is otherwise a statutory entitlement for a spouse. There is a disclosure of all financial information for each of the parties so that a fair and reasonable distribution of all assets can be made, just as there is in a divorce action.
A separation agreement should include not just the items specified, but determination of custody, visitation and child support for the child and children of the marriage; maintenance (alimony or spousal support), distribution of all marital property and debt. Please review the specific items on this site as to custody and visitation, child support and divorce. A separation agreement should do everything a divorce does, but for the divorce itself. Separation Agreements take the power away from the Court to make your decisions for you by making them yourself, though a Court will ultimately have to approve your agreement as being fair and reasonable.
An agreement can be drafted for certain issues that you agree upon, even if the balance cannot be agreed to. For example, you may be able to work out the issue of custody and visitation, so that you can make an agreement on that issue that you can submit to the Court to make it a Court order. Each issue that you can agree to and get approved by a Court will avoid your having to litigate that issue. Sometimes this can be an effective way to limit the issues to those that you really cannot agree to, and save a great deal in legal fees and emotional distress by doing it.
Keep in mind that these agreements can be challenged, or there are mechanisms to get a Court to modify them, just as an Order of the Court may be modified under specific circumstances.
If you are already involved in a divorce action, nothing stops you from working out a settlement in the middle of it. These are often called Opting Out Stipulations, a short form separation agreement, or a full separation agreement can be used for this purpose as well.
This is just a brief overview of certain aspects of agreements which you may find helpful for informational purposes only. It is not intended as legal advice and does not establish an attorney client relationship.
If you need to discuss a separation agreement, or challenge to a separation agreement, please contact Diana.