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Separation Agreements

Separation Agreements

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.

Separation Agreements

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:

SAMPLE SEPARATION AGREEMENT
_________________, hereinafter referred to as “Husband,” and _________________, hereinafter referred to as “Wife,” hereby agree to the following:

A. Preliminary Matters
Husband and Wife were lawfully married on ____________, ______, at ______________ (city), _____ (state), in the County of ________________. Because certain problems have developed between Husband and Wife, they hereby agree to live separately and apart, subject to the terms and conditions as set forth below.
Husband and Wife have made a complete, fair, and accurate disclosure to each other of all financial matters affecting this agreement.
Husband and Wife have each been advised and counseled by attorneys of their choosing regarding their legal rights as related to this agreement.
This agreement is intended to be a final disposition of the matters addressed herein and may be used as evidence and incorporated into a final decree of divorce or dissolution.
Should a dispute arise regarding the enforcement of this agreement, the prevailing party will be entitled to his or her reasonable costs and attorney’s fees.

B. Custody and Visitation
The children of this marriage are:
Name
_____________
_____________
_____________
_____________
_____________
_____________
Date of Birth
_____________
_____________
_____________
_____________
_____________
_____________
Social Security Number
_____________
_____________
_____________
_____________
_____________
_____________
The following children will reside with Husband:______________________________________
The following children will reside with Wife:______________________________________
The following children will reside jointly with Husband and Wife:______________________________________
Custody will be shared according to the following schedule:
Husband will have visitation with the children not in his custody according to the following schedule:______________
Wife will have visitation with the children not in her custody according to the following schedule:___________________

C. Child Support
Husband will pay to Wife the amount of $_____________ each and every ____________ (week, month, etc.) as and for child support.
Wife will pay to Husband the amount of $_____________ each and every ____________ (week, month, etc.) as and for child support.

D. Spousal Support
Husband will pay to Wife the amount of $_____________ each and every ____________ (week, month, etc.) as and for spousal support.
Wife will pay to Husband the amount of $_____________ each and every ____________ (week, month, etc.) as and for spousal support.

E. Homestead
Husband / Wife (circle one) will remain in the family home, located at _________________________________________________.
Husband’s / Wife’s (circle one) new address will be_________________________________________________.
The expenses relating to the family home will be paid by the parties as follows:
Husband will pay:
___________________
___________________
___________________
___________________
___________________
Wife will pay:
___________________
___________________
___________________
___________________
___________________

F. Other Debt & Expense Payments
Husband agrees to pay the following debts and expenses and will not hold Wife responsible for the same:___________
Wife agrees to pay the following debts and expenses and will not hold Husband responsible for the same:___________
Neither Husband nor Wife may incur any additional debt that may result in joint liability. Any debt incurred by either party subsequent to this date will be the sole responsibility of that party.

G. Personal Property
The personal property of the parties will be divided as follows:
To Husband:
___________________
___________________
___________________
___________________
___________________
To Wife:
___________________
___________________
___________________
___________________
___________________

H. Insurance
Husband will maintain life insurance in the amount of $_____________ for the benefit of:______________________________
Wife will maintain life insurance in the amount of $_____________ for the benefit of:___________________________________
Husband will maintain medical and dental insurance for the benefit of:___________________________________
Wife will maintain medical and dental insurance for the benefit of:___________________________________

I. Attestation
Agreed to this __________ day of _____________, ____________.
By:Husband ________________Wife ________________Witnessed by:___________________________________
(Witness or counsel signature)_________________________________
(Witness or counsel signature)[NOTARY PUBLIC MAY AFFIX STAMP HERE]


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