A Separation Agreement, also known as a Marital Separation Agreement, is a document that allows you and your husband or wife to specify terms for living apart, as well as things like:
- Child maintenance, child health insurance, custody, and visitation rights;
- Spousal maintenance;
- Division of shared assets, particularly the marital home;
- Items that each spouse is entitled to; and
- Who will be responsible for which debts.
Temporary Separation Agreement vs. Permanent Separation Agreement
A temporary Separation Agreement is one that is valid until the couple gets divorced, at which time a new Separation Agreement will be made. A permanent Separation Agreement is still valid after divorce.
Why Should I Create a Separation Agreement?
A Separation Agreement gives you and your spouse control over who receives what when you decide to part ways. It allows you to document your decisions in writing, which the court will likely incorporate in the divorce judgment.
Decisions to Make in a Separation Agreement:
You and your spouse will need to make several decisions upon separation, including:
If you have financially-dependent children, you will need to determine who will have decision-making authority for your children. This can be one of you, or both of you.
As well, you will need to determine where the children will reside if you will be living in separate homes. In the event only one parent retains custody, you may wish to specify visitation for the non-custodial parent, if any.
Additionally, you will need to devise a financial support plan for your children. This plan can involve specifying which parent will provide child support and pay health care costs, along with preparing a monthly schedule describing when the payments are due and when the payments end.
Spousal support is when one spouse provides financial support to the other who is in need of temporary monetary help. Several factors can contribute to the amount and the frequency of spousal support, including the length of marriage, financial standing of each spouse, standard of living prior to separation, age and health of each spouse, and past contributions from one spouse to the other.
Shared and Separate Assets:
Your marital home is the residence you shared while married. In your Separation Agreement, you will need to determine who retains ownership over this property.
By default, both spouses are entitled to equal possession and ownership rights in the marital property, unless you have otherwise agreed to a different arrangement in writing.
You may start by listing and appraising all your assets, and then deciding how to divide those assets.
During the course of your marriage, you may have accumulated several debts, including shared debts. These debts can include a mortgage on the marital home, car loans, etc. Both spouses are responsible for shared debts, but you should list who is expected to pay off what debts in your Separation Agreement.
What Does Living Separately and Apart Mean?
Living separately and apart does not necessarily mean living at separate addresses. Generally, living apart means you and your spouse no longer act as if you are married. This could be categorized by a variety of factors:
- Lack of communication;
- Separate meals;
- Not participating in the same activities;
- No sexual relations;
- Segregating assets and finances; and
- Dividing household responsibilities.
Documents Related to a Separation Agreement: