Separation agreements go by many names. They are sometimes called Marital Settlement Agreements, and many people think of them as Divorce Agreements. Regardless of what they are called, these contracts play an essential role in allowing spouses to end their marriage on their own terms.
These agreements settle the rights and obligations of divorcing spouses. When drafted correctly, these agreements can address the following matters, among others:
- Child custody and visitation
- Child support
- Marital property and debt division, including the marital home and retirement accounts
- Family business division
- Spousal health insurance coverage
- Tax issues related to marriage and divorce
Spouses can execute these agreements after or in anticipation of their separation. Note, however, that signing a Separation Agreement does not end your marriage. You are still legally married until a judge signs a divorce decree, which may allow for survival or merger of the various provisions of the Separation Agreement. Provisions that merge become part of the divorce decree, and can be changed by a further order, such as a modification. Provisions that survive will remain as an independent contract between the parties and generally cannot be modified by court action. Generally, property division provisions will survive as this division is considered final, while child-related provisions will merge because custody, visitation or child support provisions may change over time as the children’s needs change.
It’s important to have experienced legal counsel negotiate, draft, and execute your separation agreement. The terms included will become legally binding upon you, and failure to observe the rights and obligations contained in the agreement could subject you to contempt and other sanctions.
As you consider your separation agreement, these are a few matters you should discuss with your lawyer:
Child custody and visitation.
How will time with the child be shared between the parents? Included herein are overnights in general as well as for special times like holidays, birthdays, and vacations. The divorcing parents must also decide how legal custody – which is decision-making authority over the child for significant issues like religious upbringing and education – will be shared.
Divorcing parents must decide on an appropriate amount for child support, in accordance with state guidelines. They should also discuss who will pay for the child’s health insurance, child care, and extracurricular and medical expenses, among other costs.
Spouses can settle the amount and duration of alimony. They can also decide to waive alimony, provided that certain conditions of fairness are met. In many divorces, spouses agree to waive or limit alimony in exchange for other concessions, for example regarding division of the marital home.
Property and debt division.
Marital property and debts must be divided between the spouses. Some of the most significant assets that must be split are the marital home, vehicles, retirement accounts, and investment accounts. But don’t forget debts. Similar to alimony, some spouses agree to accept less marital property or more marital debt in exchange for other benefits.
A judge will review the agreement to ensure it is fair and reasonable to both spouses. However, in most cases, courts will approve these contracts and thereby render them enforceable. Agreements with unenforceable or unreasonable terms will not be approved. For instance, the judge may not allow a separation agreement that waives child support except under certain circumstances.
Having a seasoned family law attorney negotiate and draft your separation agreement is essential. Many agreements are entered into after mediation, an alternative dispute resolution method by which a neutral third party (mediator) helps the spouses negotiate terms like those above. Mediators don’t decide what terms to include or compel you to come to an agreement. But they will explain the benefit of deciding your divorce on your own terms versus spending significant sums of money in litigation with an uncertain outcome. If you’d like to get started with your separation agreement, or you need help reviewing the terms of one that has been offered to you, connect with our Family Law team.