Not all marriages end in divorce. In some states, if a couple has come to the conclusion that they can’t live together, but they don’t want or they are not ready to end their marriage, they can file for a legal separation.
1. What is Legal Separation?
In a legal separation, the couple stay married but do not have the same responsibilities towards each other. Most importantly, because the spouses are not actually divorced, they can’t remarry.
As it is with divorce, a legal separation can only be granted by court order. In states where a legal separation is not an option, couples who want to split have to choose between a divorce or an informal separation, with some agreements being made between the spouses in regards to how their marital property will be divided.
Couples choose separation instead of divorce for a variety of reasons, namely:
- For religious beliefs;
- To maintain the status of the marriage for the sake of the children;
- To keep health insurance benefits; or
- Because they are simply opposed to divorce, despite no longer being able to live together.
2. What is a Separation Agreement?
Legal separation follows the same process as a divorce, which typically means filing the paperwork with the court to request a separation and proposing the terms of a separation agreement.
A separation agreement is a document comprising the understanding that the parties have in regards to their separation and that addresses the same major issues that need to be resolved before a divorce can be finalized, specifically:
- Custody, visitation and child support
- The division of marital property and spousal support
Firstly, if the couple has children, the agreement must give specific details regarding how custody will be handled i.e. the couple’s parenting plan? A judge will scrutinize the separation plan to determine whether or not it serves the children’s best interest and to what extent.
Secondly, a separation agreement must address how the couple’s property and assets will be divided, including both tangible and intangible assets, retirement accounts and other finances. It must also address how their debts and liabilities will be allocated, which can often present more of a challenge for couples. Furthermore, a separation agreement must address whether or not either spouse will pay spousal support to the other, and if so, in what amount and for how long?
3. Who Drafts a Separation Agreement?
Each of the issues above must be addressed in detail within a couple’s separation agreement, along with other issues such as health insurance, life insurance, and how the couple will finance their children’s education.
But, in order to ensure that the separation agreement addresses each parties rights, entitlements, and obligations, it should be drafted by a knowledgeable and experienced professional, typically an attorney, or if the divorce is being mediated, by the mediator.
4. Contact an Experienced Divorce Attorney
For help drafting a separation agreement, or for more information on what a valid separation agreement should contain, contact an experienced divorce attorney for a confidential, no-cost, no-obligation consultation.
Please find a sample separation agreement below: