Last updated August 19, 2022
What is a Separation Agreement?
A Separation Agreement is a document that two people in a marriage use to divide their assets and responsibilities while they are separated. Some spouses separate temporarily and eventually reconcile, while others separate indefinitely. In many cases, spouses separate as a step towards divorce.
If you and your spouse pursue a divorce, you may submit your Separation Agreement to the appropriate court before the divorce proceedings. The overseeing judge may consider the terms proposed in your agreement when finalizing the divorce decree in some cases.
A Separation Agreement is also known as an:
- In-house Separation Agreement
- Legal Separation Agreement
- Trial Separation Agreement
- Marriage Separation Agreement
- Legal separation papers
What does it mean to be separated?
Being separated means that you and your spouse live apart from one another, but are still legally married. However, separating doesn't necessarily mean that each spouse has to live at a different residence.
Sometimes, a couple will consider themselves separated, but continue living in the same home for financial reasons or their children's well-being. This situation is called an in-house separation or separated but living together. In this case, being separated can mean:
- Dividing your finances, assets, and debts
- Physical separation, including sleeping separately
- Disengagement from the marital contract with the intention to divorce
What does it mean to be legally separated?
Being legally separated means that you and your spouse have pursued a court order to alter your marital status. When you are legally separated, you are neither married nor divorced. Being legally separated is a distinct marital status.
What does a Separation Agreement include?
Depending on your shared property, debts, and whether you have children, you may address the following issues in your Separation Agreement:
Who should use a Separation Agreement template?
Our Separation Agreement template is for spouses who can agree on the terms of their separation. If you and your spouse can't agree, you may have to pursue mediation, arbitration, or litigation to determine your separation terms.
Also, if your circumstances involve complicated property distribution schemes, significant assets, or complex issues related to children, you might wish to seek expert legal advice.
Spouses who use a Separation Agreement template should also create or update their individual Last Wills and Powers of Attorney once they decide to separate.
When do I need a Separation Agreement?
Since there are three types of separation, you can use a Separation Agreement in various circumstances. The three types of separation, and the circumstances to which they apply, are as follows:
1. You and your spouse are living apart and deciding whether or not to end your relationship
If you and your spouse have decided to separate but have not determined whether you will reconcile or divorce, you are in a trial separation.
In this case, look at creating a Separation Agreement for the time being so you can document when you started living independently and outline both of your obligations to one another while separated.
2. You and your spouse are separated and plan on divorcing
If you and your spouse are separated and pursuing a divorce, you are permanently separated.
If you and your spouse can agree on terms related to child custody, child support, spousal support, and the division of your assets and debt, create a Separation Agreement to govern your actions during the separation period.
You may be allowed to submit your Separation Agreement to the divorce court during your divorce proceedings. Sometimes, the judge may consider the terms proposed in your agreement when finalizing the divorce, allowing you and your spouse to retain some control.
3. You and your spouse want to separate permanently, but maintain your legal marital status
If you and your spouse would like to live separate and apart permanently, but maintain the legal relationship status of being married, pursue a legal separation. Spouses may pursue this type of separation for various reasons, including religious beliefs and tax benefits.
Legal separations are allowed in most states, not including Delaware, Florida, Georgia, Mississippi, Pennsylvania, Louisiana, and Texas. In the states that recognize legal separation, you can file your agreement with the appropriate court so a judge can issue a court-ordered legal separation.
How should spouses divide property in a Separation Agreement?
How you and your spouse divide property is largely dependent on your circumstances. In many cases, separating spouses retain their separately owned property and divide their jointly owned property. Below are some suggestions to help you get started with the division of shared assets process:
1. Create a list of all your assets
List all assets you own jointly. Consider your vehicles, personal items, such as electronics or jewelry, and any real estate that isn't your matrimonial home. You can find a list of assets to consider in this property division checklist.
2. Appraise the value of your assets
Put a price on each asset that you're distributing. Consider seeking an expert opinion for more significant assets, such as real estate or anything else that may be difficult to value.
3. Decide the division of property
Determine whether there's a logical owner to certain property. Go through your list of assets and choose who has a reason for receiving the item. You may want to consider exchanging one larger item for several smaller items to ensure an equal split.
How do I calculate spousal support in a Separation Agreement?
Spousal support is financial support paid by one spouse to the other spouse when their marriage breaks down. Spousal support aims to redistribute wealth so that one of the spouses doesn't face economic inequality at the end of the relationship. Spousal support is also known as spousal maintenance or alimony.
Consider the following six factors when determining the terms of spousal maintenance during your separation period:
1. The length of the marriage
Sometimes, the longer a couple is married, the longer one spouse becomes financially dependent on the other.
2. The standard of living before separation
Generally, courts like to see the financially dependent spouse live according to the standard of living they've become accustomed to during their marriage.
3. The paying spouse's future financial prospects
Spouses who are likely to be earning more in the future are often expected to pay more spousal maintenance.
4. The receiving spouse's future financial prospects
Spouses that aren't likely to earn as much in the future may require more maintenance.
5. The health and age of both spouses
Younger spouses, who are in good health, generally require shorter periods of support because they can still enter the workforce and find a means of providing for themselves. On the other hand, if one spouse is older or in poor health, they may require more support as they may not be able to provide for themselves.
6. The sacrifices and contributions of both spouses during the marriage
Suppose the spouse who requires support has contributed to the other spouse's career or has suffered an economic disadvantage because of a career compromise (e.g., raising the children of the marriage while the other spouse works). In that case, that spouse can usually expect to be compensated accordingly by the other spouse.
Can I include pets in a Separation Agreement?
Yes, you can outline a pet's custody in a Separation Agreement. Many people consider pets to be family. Agreeing to custody or visitation can prevent future disagreements about one party seeing or keeping any pets.
If you and your spouse are separating and want to outline more specific details about a pet's care, you may use a Pet Agreement.
What happens to my Separation Agreement if my spouse and I reconcile?
Our Separation Agreement template outlines that your contract will remain in effect unless either party revokes it in writing. If you and your spouse eventually reconcile after being separated, use our Termination Agreement to cancel the Separation Agreement.
Will my Separation Agreement be legally recognized?
First off, you do not need to file your Separation Agreement with a court. A Separation Agreement is a contract between two parties and therefore is governed by contract law. The contract binds both parties to its terms. Therefore, if either party breaches the contract, the other can file a legal claim.
If there is a legal dispute and your Separation Agreement is presented to a judge, they may reject the terms of your agreement if:
- Its terms aren't in the best interest of your children
- You or your spouse haven't fully disclosed certain assets or liabilities
- Its terms are unfair (e.g., one spouse waives their right to support without proper compensation)
- It has not been properly witnessed
In addition, a Separation Agreement shouldn't contradict any other binding agreements, such as a Prenuptial Agreement or Postnuptial Agreement.