Why is it important to have a formal separation agreement?
The goal of a separation agreement is to define the roles of the parties while apart. It serves as a formal acknowledgement that you are living apart, which can be helpful in a later divorce. Drafted properly, it will protect also protect you from your soon-to-be ex's choices and accusations moving forward. It stops the accrual of martial property and debts.
A separation agreement truly should serve as a tool to reduce conflict. The agreement should have a clear delineation of the roles and expectation of each party. Hopefully, this will allow you to focus your attention on healing your marriage. If your intent is not to reconcile, then a separation agreement will hopefully serve to reduce anger and frustration with the other party while you work toward divorce. This is of incredible importance because the more you are able to work together to accomplish your divorce, the less money you will pay lawyers to do it for you.
What do separation agreements cover?
Assets and liabilities: A separation agreement can be used to clarify what the assets and liabilities are at the time of the separation AND to formalize that all assets and liabilities acquired after the point of separation will not be considered joint in the event of a later divorce. This is very important if one party goes on a spending spree and runs up debt or attempts to hide money or property. Without a separation agreement, you may be held liable for that debt or have to fork over money you made while pending divorce. The court will be forced to try to determine when you separation began on its own. Any efforts to reconcile may be considered by the court as evidence that debts and assets acquired during this time ARE martial property. The separation agreement allows you to try to heal your marriage without concerns that your efforts may put you at financial risk later.
Living Arrangements: A separation agreement can clarify items like who will live in the marital home and who is response for the marital rent or mortgage as well as the utilities. There will likely be two households now. The separation agreement clarifies who is paying for what.
Define Support Requirements: While living apart it is likely that one party will need to pay the other child support and/or alimony. It is important to put any agreements in writing. This is particularly important for military members who have a military requirement to adequately support their dependents. Any formal agreement between you and your spouse will likely trump your service's regulation. Therefore, it is important that you and your partner define what is appropriate, not Uncle Sam.
Set Custody Schedules: Hopefully you love your children (at least most of the time) and want to see them. It is very important that you have custody schedule to allow this to occur while separated. It is very important to remember that family courts love to maintain the status-quo. That means whatever you agree to in your separation agreement could become permanent! If you want to be the primary custodian of the children, it is best you never stop fulfilling this role. Do not move out of the house, do not give up more than 50% of the custody time. You may never get it back. If you are the noncustodial parent, it is particularly important that you establish your custody routine and exercise it! Do not agree to a schedule that you are not happy with. It may be very expensive, exhausting, and time consuming to get it changed later.
Separation of the Assets: While all property is unlikely to be divided in a separation agreement, it is important that you take custody of anything of particular importance to you. This might include family heirlooms, pets, or other sentimental items which you feel can not be adequately substituted for money in a division of assets later on. Divorce courts often award separated spouses the personal property that is in their own possession. You should clearly specify in your separation agreement any personal property you must leave with your separated spouse will become yours if you should divorce.
Taxes: A separation agreement can define how the parties will file, jointly or separately. If the parties are going to file separately, it can define who can claim certain exemptions, like children. If the parties file jointly, it can clarify how any tax return is divided between the parties.
Early Return of Dependents: If you are a military member living overseas who wishes to have their dependents return back CONUS at government expense, a separation agreement may be, but is not always, necessary to get your command to approve your ERD package. Check your local requirements with your base legal office.
How is a separation agreement formalized?
A separation agreement is a contract between a husband and wife when they separate from each other in which they resolve such matters as property division, debts, custody and support. This agreement may be notarized or adopted by a court depending on your state. In some states, legal advice is required to make a separation agreement legally binding.
All states except Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas recognize legal documentation of separation.
Once you enter into a separation agreement, they are VERY difficult, if not impossible, to undo. There is a long-standing principle under the law that people can make as good or as bad of a contract as they want. Make sure you are happy with your agreement before you sign it. You likely want to consult with an attorney before signing a separation agreement.
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