The marriage separation agreement is a legal document used by married couples to outline how their assets, debts, property, spousal support, children, and other shared responsibilities will be managed during their separation.
A marriage separation agreement is also referred to as:
- Marital settlement agreement
- Marital separation agreement
- Legal separation agreement
- Divorce agreement
- Separation Agreement
A marriage separation agreement is usually written and submitted to the court prior to the divorce proceedings. It is important to note that the marital separation agreement can be used if married couples want to separate some aspects of their lives but remain legally married.
Legal Separation VS Divorce
The main difference between legal separation and divorce is that, in a legal separation, the couples are still married and may still be living in the same house with different responsibilities. At the same time, the marriage is entirely dissolved in a divorce. However, both legal separation and divorce create a space between the couples. For example, they live separately, marital assets are divided, child custody is shared, and one may be required to pay spousal support. Couples usually use a separation agreement in both cases to determine how everything will be shared or divided as they part ways.
What is Meant by Living Separately?
Numerous reasons may lead to a couple living separately. Living separately, however, does not necessarily imply that the couple is living in different houses. The couple may continue living in the same house and still consider themselves separated. Some of the reasons that may make the couple still live together after separation include finances, work, children, school, and other significant responsibilities. A few examples of living separately include Attending events separately, sleeping in different rooms/beds, dining separately, taking turns in taking care of the children, seeing or visiting the children, etc.
The couples need to note that if they choose to live together after the legal separation, alimony or spousal support will not be included as tax deductibles.
When to Use Separation Agreement
Three main situations warrant the use of a marriage separation agreement. These three situations include:
- When a married couple has decided to separate while they try to solve their issues but are not yet ready for divorce, in this case, the married couple creates a separation agreement to set clear their terms for living separately and divide their financial and other critical responsibilities while they are separated.
- The second instance is when a married couple has decided that the marriage is no longer a viable option for them and has opted for divorce. To ensure that everything is done in the proper manner and that all the items are divided relatively, the couple may consider using a marriage separation agreement form to divide their estate instead of having the courts take charge of the issue. By creating a mutually benefiting separation agreement, which is later submitted to the court and included as part of the divorce decree, the couple can save time and money in the process.
Note: It is important to note that the court may only use the separation agreement if mutually benefitting. If not, the court may have no choice but to divide everything to ensure that each couple receives their fair share.
- The third case is where a married couple would like to permanently live separately but still maintain their legal relationship status as being married. In this case, the couple may use the separation agreement to clarify their decision to live separately and divide their duties and responsibilities.
Elements of a Separation Agreement
There are essential elements that must be included in a separation agreement to make it legally enforceable. These elements include:
The marriage separation agreement should include basic information. This is simply information to help identify the parties involved in the separation. In this section, the following should be included:
- The names of the parties involved
- The address(es) of the couples
- The date of marriage
- A confirmation that the couple meets the residency requirement of their state
- The reason for the separation
- A statement on whether the separation is permanent or temporary
Division of shared responsibilities
The court will, in most cases, only consider a marriage separation agreement if both parties deem it as being fair. Therefore, the marriage separation agreement must clearly outline how the responsibilities will be shared between the couples.
The agreement must establish how the following will be shared:
The marriage separation agreement must clearly define how the finances will be shared and should cover various things such as:
Money paid from one spouse to the other to assist them in maintaining their conventional financial lifestyle is referred to as spousal support. During marriage separation, each spouse must be able to have at least a fair share of the proceeds of the separation to be able to maintain their conventional lifestyle. Therefore, the couple may decide to share their finances and help each other maintain their conventional lifestyle. Some of the factors that should be considered when considering spousal support include The duration of the marriage, the couple’s standard of living before separation, the health and age of both spouses, and the future financial prospects of each spouse.
The marriage separation agreement must also outline how the child support will be handled. Child support can usually be negotiated and included in the separation agreement. It is essential to allocate a fair amount to each parent, depending on their financial capabilities, to take care of the child during the separation. It is also essential to ensure that the child’s lifestyle is not affected too much during the separation by ensuring that all their expenses will be catered for. The amount, payment dates, and duration for payments must be included in the separation agreement to avoid any quarrels concerning the child’s expenses.
The marriage separation agreement must also clarify how the household items will be divided among the spouses if the separation is permanent or in the case of a divorce. Items that may be included in this section include:
- And other tangible assets
The separation agreement should also explain who will be responsible for having custody of the children during the separation. This usually depends on several factors, such as the child’s age, current school, and other programs they are engaged in. Although the parents may determine the party that may be responsible for the child, the decision may be changed by the court and such responsibilities established in favor of the child.
Division of Financial obligations
The separation agreement must also outline how the financial obligations will be shared. This should be based on the spouse’s standard of living prior to separation, the health and age of both spouses, and the future financial prospects of each spouse. Mortgage, loans, bills, and taxes should be included in the separation agreement to help establish who will be responsible for each item.
Signatures and Notarization
Both parties must sign the marriage separation agreement and have it notarized before a notary public to show that they acknowledge the document and are satisfied with its contents.
Marriage Separation Agreement Templates
Following are some free downloadable Marriage Separation Agreement Templates for you:
Frequently Asked Questions
It is possible to write your separation agreement. The agreement must, however, capture all essential elements and must be fair to both parties.
A couple can remain legally separated for as long as they want. Married couples may choose to be separate by still remain legally married indefinitely.