Couples get married and vow to stay together till death does them apart. The reality is that while some marriages stand the test of time, others do not. Such situations require the two individuals to agree on handling their disengagement and managing their properties, children, support issues, possessions, and other aspects. Before attending divorce proceedings, some couples prefer to have a separation agreement on handling different issues to make their divorce much more effortless.
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What a Separation Agreement is
A Separation Agreement is an arrangement between spouses that indicates how they will share their assets, liabilities, and possessions separately.
The document is drafted before the divorce proceedings to make the separation procedures straightforward and avoid lengthy court discussions and negotiations. As a result, couples with a separation agreement can meet strict court timelines during their divorce hearings and have a higher likelihood of agreeing on a favorable outcome for both parties. Some of the aspects included in the document include procedures on child custody and support, management of assets and debts, spousal support, parental duties, and the financial obligations of the two parties. The two spouses should sign the agreement, which will help them keep their things in order before living separately and allow them to influence the outcome of their divorce.
A Separation Agreement Template is a pre-formatted document with some preliminary details that you can use to create your agreement. Usually, a template will leave gaps and spaces where you fill information relating to your separation and is also editable if more details need to be included.
Alternative names
We can also refer to the separation agreement using the following names:
- Marital Separation Agreement
- Divorce Agreement
- Marital Settlement Agreement
- Separation Papers
- Legal Separation Agreement
- Marriage Separation Papers
How a Separation Agreement Works
Couples begin to work on their agreement early enough to avoid the stress of working out everything during the divorce proceedings. When such a document is in place, the two individuals can present their wishes and resolutions to the court without lengthy consultations and bargaining. In addition, it becomes easier to meet the timelines given by the court if the couples have already settled their issues.
A separation agreement will usually set out the rights and responsibilities of the two parties after the divorce. The two spouses will want to agree on essential aspects such as sharing assets, child custody, ownership of the home, responsibility for debts, and spousal support. Keep in mind that a separation agreement is a legal document. A party who fails to honor the agreed terms may be taken to court for such infringement.
When is it used
There are several situations that may make a couple prefer to have a marriage separation agreement, which are as follows:
- If you and your spouse wish to live apart for some time, you may have a separation agreement on how you will handle your issues and properties in the meantime. The document will state that the two parties have chosen to be estranged temporarily and have agreed to undertake their responsibilities separately until they decide whether to get divorced or not.
- Another situation would be where you and your spouse wish to get divorced on your terms, rather than allowing the court to do so. The couple’s attorney usually presents the agreement to the court and helps the proceedings move in the direction that the couple agreed.
- Most couples will also prepare a separation agreement before meeting their divorce attorney. Having documented your consensus on handling your assets and liabilities makes it easier to interact with your attorney and commence the divorce proceedings.
- Other couples may decide not to get divorced but live separately henceforth. The separation agreement helps to stipulate the conditions of the permanent separation in terms of how the couple will manage its affairs.
Separation vs. Divorce
Although related, the separation and divorce of the term have distinct meanings. Separation refers to a situation where married individuals desire to live and manage their issues individually but remain legally forbidden to each other. Couples that have been separated for some time may decide to re-unite or proceed to divorce in court. However, some people may also desire to remain separated indefinitely.
Divorce can be considered as the termination of marriage through a court ruling. Divorced individuals have no legal union and can proceed to get married to other people. Some couples will present their agreement during the divorce to determine how they will proceed with their lives after that.
Reasons for seeking separation instead of divorce
While a divorce legally terminates a marriage union, a separation only means that you and your partner have decided to manage your affairs individually but remain in a legal union.
A couple may choose separation over divorce in the following circumstances:
- Married individuals who want to live apart (in different residences) but do not want divorce are still considered as married.
- You and your spouse may want some time apart before starting divorce proceedings to get mentally prepared for it.
- Some couples may not want to get divorced due to their social or religious beliefs.
- Others may want to retain marital status to enjoy benefits, such as tax reliefs, given to legally married couples.
- There is a legal requirement in a particular jurisdiction for remaining separated for a certain period before getting divorced.
- Some couples may also want to get some time to work on their separation agreement as they prepare for divorce.
- Preparing a marriage separation agreement also stipulates the terms of spousal support after disengagement, and makes sure that they are followed.
What Living Separately and Apart Means
Living separately and apart may sound similar, but the two terms have different meanings. Couples that live separately have disengaged themselves from each other even if they stay in the same residence. Separated individuals may have physical separation, such as no longer living or sleeping together, as well as financial separation in terms of assets and liabilities. Some separated couples may be headed towards divorce.
On the other hand, living apart means that two individuals do not live in the same residence. Some couples may choose to live apart to give each other some space and autonomy, not because they are necessarily separated. Keep in mind that the legal interpretations on living separately and apart may differ according to the laws of a given jurisdiction.
Essentials of Separation Agreement Template
A well-drafted agreement is a good way for couples to agree on how they will take care of their possessions and responsibilities when living apart. Therefore, there is a need to ensure that the spouses agree on how all critical aspects will be handled during the separation.
The following items should be included in a separation agreement document:
- Allocation of assets and liabilities- The couple should agree on how their possessions and debts will be apportioned between them.
- Ownership and residence of marital home- If the couple were owning a home, the separation agreement should indicate who will possess it after separation.
- Child custody and support affairs- For couples who had kids, issues of custody and supported affairs should be agreed upon. However, the court will have the final verdict on custody in order to ensure that the interests of the children are considered.
- Child visitation rights- Depending on who takes custody of the children, the spouses should agree on the issue of visitations by the other party.
- Current and future spousal support- Couples must also agree on the amount and duration of financial support that may be given to either of the spouses.
- Responsibilities for recurrent expenditures during the separation- Before the couple finalize their divorce, the spouses should deliberate on how the marital home will be run, including payment of utilities, domestic workers, etc.
- Allocation of costs related to the marital home in case of divorce- Couples should indicate how they intend to run the costs of their marital home, including mortgages, insurance, among others.
Types of Finances Managed During Separation
Couples should plan to settle their debts and ensure that their financial resources are shared fairly between the two parties. Courts will only ratify a separation agreement that ensures both parties’ welfare and their dependents are guaranteed after separation.
Following are a few types of expenses that are taken care of in the procedure of separation:
Spousal support
Some individuals may decide to commit that they will provide financial support or alimony to their estranged partners after the separation. The funds are meant to ensure that the other party’s usual lifestyle is not adversely affected after living apart. In most cases, the amount of spousal financial support will depend on the lifestyle before separation, earnings of each individual, personal contribution by the couples during the marriage, the duration of the union, and the projected income streams of the couple. A spousal support arrangement that is considerate of the situation and circumstances of each of the two parties has a higher probability of getting accepted by the court during the divorce hearings.
Child support
A well-drafted separation agreement needs to indicate how each of the parties should contribute to their children’s welfare. The couple must agree on the amount to be paid, when it should be remitted, and how long it should be done. The couple must create a fair arrangement on child support that considers the financial situation of the two parties and guarantees a good lifestyle for their children. Remember that the court may alter or modify child support agreements to ensure that the child’s welfare is prioritized.
Frequently Asked Questions
Couples should append their signatures to the separation agreement and retain copies of the same. If the signature of one of the parties is missing, the agreement is likely to be declared null and void.
As long as the marriage separation agreement considers the situation of both parties, allocates rights and responsibilities to both parties fairly and is rational, it may be considered legally binding.
It is within the discretion of couples to determine how long they want to remain separated. Many couples end up filing for divorce after staying separated for a while. Others desire to remain legally joined together indefinitely for their reasons instead of filing for divorce. Some couples will end their separation when one of the parties gets another suitor with whom they would desire to establish a legal union.
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