Separation Agreement Information
A Separation Agreement is also known as:
- Marital Separation Agreement
- Marriage Separation Agreement
- Divorce Agreement
- Legal Separation Agreement
What is a Separation Agreement?
A Separation Agreement is a document that two people in a marriage use to divide their assets and responsibilities when preparing for separation or divorce.
It includes terms to divide child custody and child support, parental responsibilities, spousal support, property and debts, and other family and financial aspects that you and your partner or spouse may wish to allocate or divide.
A Separation Agreement may be submitted to the court prior to the divorce proceedings or can be considered by the presiding judge in the final divorce judgment.
When to Use a Separation Agreement
Separation Agreements are generally used in three situations:
A married couple has decided to separate for the time being, but are not ready to divorce. They would like to continue their marriage, but wish to live apart temporarily. They choose to create a Separation Agreement so that they can document when they started to live independently and so that they can divide their family and financial responsibilities while they are separated.
A married couple has decided to divorce and already know how they would like their assets, debts, properties, and responsibilities for their children broken down. Instead of having a court decide what each spouse's responsibilities will be upon the termination of the relationship, they choose to create a Separation Agreement. The Separation Agreement is usually submitted to the court to be part of the divorce decree.
A Separation Agreement can also be used if a married couple would like to live separate and apart permanently, but maintain their legal relationship status of being married.
Separation and Divorce
Separation is when you and your spouse are legally married but are no longer engaged in a marital relationship. You may either intend to reconcile, remain separated, or eventually divorce.
Often, separated couples use Separation Agreements to dictate which partner is responsible for what, and who will be the primary caretaker of the children, if any.
Divorce is when a married couple has received a divorce judgement. They are no longer married and are not considered to be a husband or a wife to their ex-partner.
Couples who are preparing to file for a divorce often use a Separation Agreement when they have already agreed upon how to divide their marital property and the custody of any children.
Living Separately and Apart
Whether or not you and your spouse are considered to be separated depends on your situation and jurisdiction. Living separate and apart does not necessarily mean that the each spouse has to live at a different residence. Often, a couple will continue living in different areas of the same home due to financial reasons or for children, although they consider themselves to be separated. Some jurisdictions do not allow you to be in the same residence.
Factors that will help you to prove that you are separated include:
- Separating your finances, assets, and debts;
- Physical separation, including sleeping separately, having meals at different times, and dividing the household tasks in order to limit the interaction with a spouse; or
- Disengagement from the marital contract with the intention to divorce.
If you must live together, and still wish to separate, a Separation Agreement will help to prove that you have mutually divided your marital property and parental responsibilities.
Family Finances in a Separation Agreement
Once you and your husband or wife have decided to separate, you need to divide your marital property. This includes division of the matrimonial home, all assets, debts, property, and other financial family responsibilities.
Your Separation Agreement will only be considered in court if it is fair to both parties, so ensure that you divide all assets and debts in a way that leaves neither spouse unjustly better off than the other.
Spousal Support: Spousal support, or alimony, may be included in a Separation Agreement. It is usually paid from one spouse to another to assist in maintaining an accustomed financial lifestyle. The length and amount of alimony depends on:
- The length of the marriage;
- The health and age of both spouses;
- Standard of living prior to separation;
- Sacrifices and contribution of both spouses during marriage;
- The income of each party; and
- The future financial prospects of each spouse.
If you can come to an agreement regarding the amount and length of spousal support payments, and it is fair and reasonable to both parties, then it's likely the same alimony arrangements will be incorporated in your divorce judgment.
Child Support: Child support can be negotiated and included in your Separation Agreement. It must be reasonable and fair to each parent and their financial circumstances. If you can agree upon an amount, the payment dates, and the length of payments, you may include it on your Separation Agreement for consideration. However, the courts will have the discretion to decide what is in the best interest of the child.
Frequently Asked Questions:
Separation Agreement FAQ