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What Is a Separation Agreement?
A separation agreement is a legally binding document drawn up between the parties in a marital relationship. The agreement is something that both people in the marriage use to formally divide their assets, debts, and other marital responsibilities so that each party experiences a fair separation from the other. While a separation agreement is commonly used in times when a couple knows they are heading for divorce, it's also used by couples who merely want to separate for a period of time with the intention of reconciling.
This private document may include items like child support and visitation, alimony, and the dividing of property. An attorney may submit a completed separation agreement to the court before divorce proceedings begin so it can become a part of the judge's final divorce decree.
Because a separation agreement is a legal document, both parties in the marriage should carefully consider their positioning and work hard on coming to a complete agreement to prevent any future issues or questions as to what's fair and how they plan on working together during their separation.
The Difference Between a Separation and a Divorce
Some people may look at separation and divorce as essentially the same thing, but there are differences between the two. Although a separation can be the first step toward a divorce, it's not an actual divorce, and it is treated differently in court. While a separation agreement is a legally binding contract, you wouldn't usually have to go to court to finalize the agreement because a separation is not something that a judge has to be involved in to enforce or rule over.
A separation is when you and your spouse remain legally married but have decided to no longer engage in a marital relationship. The married couple may enter a separation intending to reconcile after some time apart. Some couples may separate first, knowing that if they aren't able to work out their differences, one or both will file for divorce. Sometimes, a couple chooses to separate, knowing that they'll remain legally married.
On the other hand, a divorce often involves time in front of a judge to finalize a divorce decree. When a divorce is granted, the couple in the divorce is no longer married and, therefore, will no longer be a husband or wife to their partner.
Reasons To Consider a Separation Agreement
There are many reasons why a couple may consider a separation. Some of the situations that may call for a separation agreement include:
- A married couple who want to separate for the time being, but intend to remain married. This is common as married couples figure out what their next steps are. They may not be sure what the future holds but would like to try to work out their differences while living apart temporarily. An agreement works out well because while separated, there are agreed-upon provisions in place for responsibilities that the couple shares.
- A married couple who have decided to divorce. A separation agreement is helpful for a couple who have made the hard decision to go through with a divorce because they already have agreed on how they'll handle their assets, debts, liabilities, properties, and other responsibilities, including their children. In this case, the separation agreement is typically merged with the divorce proceedings to become part of the judgment.
- A married couple who want to separate but remain married. For one reason or another, a married couple may wish to maintain their legal relationship status but live separate and apart. In this case, a separation agreement still helps to divide up responsibilities.
Benefits of a Separation Agreement
The benefits of a separation agreement include:
- Flexibility: Rather than allowing a court to decide how your divorce will go, you and your spouse are able to come to an agreement and include conditions that are fair to you both.
- Cost: If you're able to agree on certain items that are included in the separation agreement, that usually means less time in court for litigation or other divorce proceedings.
- Time: When you have a document in place that outlines the terms of your separation and specifies how you'll separate marital finances and responsibilities, you'll end up spending less time figuring it out in front of a judge.
- Privacy: Unlike divorce proceedings, a separation agreement on its own does not have to be filed with the court. It remains a private legal document that nobody has access to unless you grant them the authority to view your agreement.
What To Include in a Separation Agreement
A married couple can feel free to include anything they want in a separation agreement as long as it's something to which both parties can really agree. Consider including these items in a separation agreement:
- Spousal support: If one party in the couple has made sacrifices or contributions to the family that has kept them from earning as much money as their spouse, they may agree on spousal support (also called alimony). This is usually something that's agreed upon when the couple is used to a certain lifestyle. Chances are that if the separation agreement includes details about the amount and length of spousal support payments, it'll be included in the divorce judgment.
- Child support: Child support details should include an amount, specific payment dates, how long the payments will go on, and even details of a child's health insurance. However, even if a separation agreement includes details about child support and it's used during a divorce, a court can make its own judgment in the best interest of the child.
- Assets: Assets can include personal property like real estate and other items that the married couple owns together.
- Debts: A married couple typically has larger debts like a mortgage, car payment, or credit card bills. They may also have other financial obligations, like ongoing monthly subscriptions, that they have to share.
- Benefits: Chances are that the spouses have each listed the other as the beneficiary on their benefits like their pension, IRA, 401(k), and other retirement plans. A separation agreement may serve to release each other from receiving the benefit should something happen to their spouse before they are officially divorced.
- Taxes: Taxes can be a complicated part of a divorce. A separation agreement can include what will happen with taxes during the annual filing.
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What Makes a Separation Agreement Valid?
A separation agreement is usually only considered valid if it:
- Is fair to both parties. When creating a separation agreement with your spouse, make sure you're separating assets and other items in a way that's fair to both parties. It does not have to be completely equal, but it cannot be unjustly one-sided, or a court may throw out the agreement during divorce proceedings.
- Has both spouses' signatures. Both parties must sign the separation agreement, and neither one can be under pressure or duress while doing so.
- Was drafted with two attorneys. It's not against the law to have the same attorney as your spouse when drawing up the separation agreement, but it's highly recommended to use separate attorneys. If both parties use the same attorney, a judge may later question the validity of the separation agreement during the divorce and inspect it closer for unfairness.
- Discloses all details. A separation agreement should disclose all assets and debts or it may be deemed fraudulent.
A separation is never an easy decision, but a separation agreement can help make the transition a little easier. Learn more about contracts before getting started, then work together with your spouse to come to a mutually beneficial decision about how to move forward.
Meet some of our Separation Agreement Lawyers
John Daniel "J.D." Hawke is an experienced attorney with a law practice in Mobile, Alabama. He was born in Fairhope, Alabama and after earning his undergraduate degree at Auburn University, he received a law degree from Thomas Goode Jones School of Law in 2010. After law school, he formed the Law Office of J.D. Hawke LLC and over the last decade he has fought incredibly hard for each and everyone of his clients. His practice focuses on representing people facing criminal charges and clients dealing with family law matters. In addition to criminal defense and domestic relations cases, he also regularly handles contract disputes, personal injury cases, small business issues, landlord/tenant disputes, document drafting, and estate planning. He is licensed to practice law in the State of Alabama and the United States District Court for the Southern District of Alabama.
Thomas Codevilla is Partner at SK&S Law Group where he focuses on Data Privacy, Security, Commercial Contracts, Corporate Finance, and Intellectual Property. Read more at Skandslegal.com Thomas’s clients range from startups to large enterprises. He specializes in working with businesses to build risk-based data privacy and security systems from the ground up. He has deep experience in GDPR, CCPA, COPPA, FERPA, CALOPPA, and other state privacy laws. He holds the CIPP/US and CIPP/E designations from the International Association of Privacy Professionals. Alongside his privacy practice he brings a decade of public and private transactional experience, including formations, financings, M&A, corporate governance, securities, intellectual property licensing, manufacturing, regulatory compliance, international distribution, China contracts, and software-as-a-service agreements.
Attorney of 6 years with experience evaluating and drafting contracts, formation document, and policies and procedures in multiple industries. Expanded to estate planning last year.
George is a lifelong Houston resident. He graduated from St. Thomas High School and then Texas A&M University. He obtained his Doctor of Jurisprudence from South Texas College of Law in 2007. He is experienced in real estate, estate planning & probate, civil/commercial matters, personal, injury, business matters, bankruptcy, general counsel on-demand, and litigation. He is active in the community serving as past-president of the St. Thomas Alumni Board, a current member of the Dads Club Aquatic Center Board of Directors, current member of the Dickinson Little Italy Festival of Galveston County Board of Directors, and former PTO President for Briarmeadow Charter School.
My clients are often small and medium size technology companies, from the "idea" stage to clients who may have raised a round or three of capital and need to clean up a messy cap table. I help with all legal matters related to growth that keep founders up at night - hiring people, allocating equity, dealing with shareholders and investors, client negotiations and early litigation counseling (before you need a litigator). I've seen a lot, and because I run my own business, I understand the concerns that keep you up at night. I’ve been through, both on my own and through other clients, the “teething” pains that will inevitably arise as you scale-up – and I’m here to help you. I have over 20 years international experience devising and implementing robust corporate legal strategies and governance for large multinationals. I now focus on start-ups and early/medium stage technology companies to enable a sound legal foundation for your successful business operations. Many of my clients are international with US based holding companies or presences. My 17 years abroad helps me "translate" between different regimes and even enabling Civil and Common Law lawyers to come together. Regularly, I handle early stage financings including Convertible Notes, Seed and Series A/B financings; commercial and technology contracts; international transactions; tax; mergers and acquisitions.
Sammy Naji focuses his practice on assisting startups and small businesses in their transactional and litigation needs. Prior to becoming a lawyer, Sammy worked on Middle East diplomacy at the United Nations. He has successfully obtained results for clients in breach of contract, securities fraud, common-law fraud, negligence, and commercial lease litigation matters. Sammy also counsels clients on commercial real estate sales, commercial lease negotiations, investments, business acquisitions, non-profit formation, intellectual property agreements, trademarks, and partnership agreements.