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A marriage separation agreement is a legally enforceable contract signed by husband and wife to divide property, debts, and other marital obligations equally.
A marriage separation agreement is executed when both partners mutually end their relationship. Therefore, it is rational to consult a professional attorney to help draft a comprehensive marriage separation agreement. State laws govern marriage and divorce, and each state has laws governing detachment and separation agreements ; you must understand some fundamental ideas when going through a separation and negotiating a settlement.
An attorney can help you draft the terms of alimony, child support, visitation rights, and property division and create a confidential contract that benefits both parties. Moreover, before divorce procedures start, a lawyer can submit a finished separation agreement to the court for official records. Since a separation agreement is a legal contract, both parties in the marriage should carefully evaluate their positions and work diligently to get a complete understanding to avoid any concerns or conflicts.
What Is The Difference Between Divorce and Separation
Although many individuals may view divorce and separation as fundamentally the same, there are distinctions between them. A separation agreement is a legally enforceable contract; you wouldn't typically need to appear in court to formalize the agreement because a judge is not required to enforce decisions regarding a separation.
A separation occurs when both partners mutually end their marriage but not officially, and they can nullify the agreement as per their wish. On the other hand, some couples decide to split first, anticipating that one or both of them will file for divorce if they can't resolve their disagreements. Moreover, a judge must frequently be present during a divorce to issue the final divorce decree. The partners involved in the divorce will no longer be husband and wife to their partner once the divorce is finalized.
Why Draft a Separation Agreement?
The primary reason you must create a separation agreement is that both the husband and wife benefit when they end their relationship. For instance, if you've been renting a home with your spouse for a while, you've probably shared many necessities, and the bare minimum can be financial planning for your house, car, and joint savings fund.
Also, you might've shared parenting duties and financial obligations, including household expenses, credit card bills, and house payments. You can even divide expenses like the cost of sending your children to school or future pension and pay-out income.
A separation agreement aims to clarify how to handle these jointly owned interests and to outline any immediate actions that must be taken (such as remortgaging the primary residence so that one of you can withdraw some equity while keeping a roof over the heads of the other family members).
Furthermore, it highlights new arrangements such as a child or spousal maintenance payments and family access to children. Hence drafting an agreement gives both parties a chance to decide and acknowledge their consent. It can significantly reduce the likelihood of uncertainty and misunderstandings in the future.
Using a Separation Agreement: Key Tips
If you're married and intend to divorce
If you don't want to divorce or can't yet file for divorce, you might want to engage in a separation agreement as an alternative. In addition, there is no need to go to court when using a separation agreement, which has the benefit of leaving open the prospect of reconciliation.
The agreement may be used as evidence of the separation date and as the foundation for the court's decisions regarding dividing assets and duties if the separation leads to divorce.
The separation agreement is not the only ground on which the court may make a legally enforceable order. However, if the agreement is equitable to each spouse and any children of the marriage, complete fiscal disclosure was made, and there hasn't been a change in circumstances that would make it unsuitable, the court is likely to approve it.
If You're Separating but not Married
A separation agreement may be a helpful instrument for unmarried couples to resolve the issue of dividing jointly owned assets and obligations. For instance, a couple who cohabitates could want to formally decide how to divide the remaining rent due on a fixed-term lease. Unlike married couples, common-law partners are not afforded the same legal protections. They don't have the same rights, especially with divorce.
If you are not married, making separation decisions may be challenging because there was neither a legal marriage nor a chance to settle on shared assets and duties. Your shared interests may have changed in an unclear way over time.
Moreover, you will have the chance to choose what is reasonable for each party and collectively decide on creating a separation agreement, minimizing the likelihood of misunderstanding or prejudice. Besides, it is a good idea to formalize the split with an agreement to avoid conflict later.
- Legal Custody: The authority to make necessary decisions about the raising of your kid on issues such as religious upbringing, health care, education, etc.
- Mediation: A type of alternative dispute resolution (ADR) for settling legal conflicts without proceeding to trial by using a professional and unbiased third party who tries to bring the parties in mutual accord.
- Premarital Agreement: A contract executed by the parties before marriage specifies each party's privileges and obligations if the marriage terminates by divorce or death.
When creating a separation agreement, you must ensure dividing possessions and other items fairly for both parties. Although it need not be exactly equal, it must not be exceptionally unfair to avoid the court invalidating the agreement throughout the divorce process.
However, if you think you cannot execute a separation agreement alone, it is better to seek our professional help at ContractsCounsel to avoid any hassles and non-compliances.
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