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What Is a Written Separation Agreement?

A separation agreement is a legal document used by spouses or partners to divide their assets and responsibilities when preparing for a separation or divorce. A separation agreement includes terms of dividing assets, child custody, child support, parental responsibilities, spousal support, property and debts, and other financial aspects that partners or spouses may wish to allocate or divide. A separation agreement is generally submitted to the court before the divorce proceedings. If a couple separates but chooses not to legally end their marriage or partnership, they may also use an informal separation agreement without involving a court.

How to Write a Separation Agreement – Step by Step

  1. Negotiate: The first step of any separation is to negotiate the circumstances from a neutral standpoint. If the partners are too emotional at the moment, they can also hire a mediator to discuss key issues. During negotiation partners can discuss their priorities and willingness to compromise.
  2. Determine priorities: A separation agreement outlines how all family and financial assets will be divided. It is important to determine the priorities of both partners to make the division process easier. Some things partners might consider are – who keeps the family home, division of property, parenting time and child support.
  3. Separate physical property: Physical property such as clothes, books, and other items will be divided in the process as well. For things that aren't as easy to divide, negotiate and reach an agreement.
  4. Divide debts and bills: Debts, credit cards and car loans become the responsibility of both partners, even if they were taken out by one of the partners, in many states. It will be important to decide who will be responsible for what. If partners have a prenuptial agreement made before a marriage, this division is an easy process. Partners often opt to make a postnuptial agreement after getting married to formalize the settlement of affairs and assets.
  5. Evaluate income for spousal maintenance: Partners need to assess their own income to determine how much they will pay in spousal support. Often lower-income spouses get support from the partner earning more. This is temporary till the other partner can get situated on their own.
  6. Determine child support: The separation agreement contains information about custody, parenting time, child support and supervision when the partners have kids together. If partners have children and they agree to live together to take care of their kids while being legally separated, they can sign a cohabitation agreement.
  7. Determine name change: If you or your partner took up another partner’s name and would like to change that, it can be added to the agreement as well.
  8. Determine divorce: Determine what happens to the separation agreement in the event of a divorce. It can often become the part of the divorce agreement.
  9. Legal Separation: Find out if your state recognizes legal separation. A few states do, and in that case, you will need to file a petition in court to have your separation agreement approved.
  10. Draft agreement form: Ensure that your separation agreement form is state-specific and complies with federal, state and local laws and standards.
  11. Signature: Once you have formed the agreement, both parties will need to sign it for it to be legally binding. You will need to do so in front of a public notary.

Here is more on how you can draft your own separation agreement.

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Essential Terms to Include in a Separation Agreement

Some key elements are common to all separation agreements:

  • Transfer of assets and liabilities: Owners should identify the assets and liabilities and determine their value. The separation agreement will then divide these assets and liabilities between the partners. In some states, debt taken while in a marriage is considered shared debt and that will need to be paid off by both parties unless one partner agrees to take on complete liability.
  • Spousal support: Spousal support or alimony can be included in a separation agreement. It is paid from one spouse to another based on the partner’s income to assist in maintaining an accustomed financial lifestyle. It depends on the length of marriage, health and age of partners, income of both parties, etc.
  • Child support: Child support is often included in a separation agreement. It should be reasonable and fair to each parent and their financial circumstances. The separation agreement generally contains the amount, dates of payment and method of payment of child support.
  • Indemnity agreement: An indemnity agreement or a hold harmless provision is generally used in reference to the payment of a debt. The party making the indemnity is called the indemnitor, and the party receiving the indemnity is called the indemnitee.
  • Custody: During separation, one partner can choose to have custody or share custody of the children. In cases where one partner is unfit to be a parent, custody is lost from them. They can still negotiate and have visitation rights. This arrangement needs to be outlined in the separation agreement.
  • Power of attorney: Generally, partners provide each other the power of attorney during marriage, meaning they undertake legal liability for each other in case of mental incapacity. That is generally lost during a divorce. If partners wish to continue their power of attorney status, they may state that in the agreement.

Here is more on elements of a separation agreement.

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What’s the Difference Between Separation and Divorce?

A legal separation doesn’t mean the end of the marriage. The marriage remains legally valid. But during a divorce, the marriage is legally dissolved or ended.

Issues discussed in both scenarios are the same–of debts, parenting rights, child support, spousal support, etc. These rights and obligations outlined in separation agreement in case of a legal separation are enforceable in court. The agreement generally becomes the basis of a final divorce or dissolution, but the marriage remains legally intact unless one or both partners decide to move towards divorce or dissolution.

You can modify the separation agreement or legal separation order in certain circumstances. If all parties agree, you can also modify the property division, child support and parental rights and responsibilities and spousal support. Divorces are more difficult to reverse. Only in some states a final divorce decree can be reversed within a certain time-frame. These states include Arkansas, Illinois, Kentucky, Maryland, Mississippi and Nebraska.

Here is more on when divorces can be reversed.

Who Writes a Separation Agreement?

A separation agreement is generally drafted by a family lawyer, with the agreement of all parties involved. In some cases, the partners can opt to draft their own separation agreement. It is advisable to seek a family lawyer to ensure that the agreement follows federal, state and local laws.

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ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.

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