What is a Separation Agreement?


A Separation Agreement lists a married couple’s choices when preparing to separate. It can document temporary (trial) or permanent separations. It is also known as a marital separation agreement. 

Generally, Separation Agreement covers:

How do Separation Agreements affect divorce proceedings?

Having a Separation Agreement makes the legal process easier by helping the judge understand the details of your separation.

The courts craft a divorce certificate or decree if the couple proceeds with the divorce paperwork. If the couple still agrees to the Separation Agreement’s terms, they could become the official terms listed in the divorce decree. The Separation Agreement itself is no longer used when the divorce becomes official.

Do both parties have to sign the Separation Agreement?

Both parties must sign the document for a Separation Agreement to become official. If your spouse refuses to sign the agreement, you can contact a lawyer or arbitrator to help settle the disagreement.

What happens if my spouse and I reconcile?

A reconciliation clause could state that you must follow the terms of the original agreement for at least 90 days after you reconcile as a couple.

What’s the difference between a trial separation and a permanent separation?

A couple may use a trial separation as a way to evaluate their marriage and to work on themselves as well as their relationship.

In a trial separation, the couple may still get back together.

However, a trial separation becomes permanent if the couple chooses to stay separated but remain married. This happens when they decide they cannot reconcile problems in their relationship, but a divorce is not the final outcome they want to pursue.

Do the terms change when a trial separation becomes permanent in a Separation Agreement?

The terms of the Separation Agreement do not change when a couple turns their trial separation into a permanent one. The terms will only change if the agreement uses time-specific language. The courts still see the couple as legally married until divorced, and the Separation Agreement remains valid.

What does “living separately and apart” mean?

Are Separation Agreements legally binding?

In most cases, Separation Agreements are legally binding and recognized by the courts. However, there are situations where the agreement will be invalid or void in the court’s eyes, including when:

1. The terms of the agreement are not in your children’s best interests

2. One spouse has not fully disclosed certain assets or liabilities

3. The terms of the separation are biased and unfair (i.e it takes advantage of a spouse that is in a vulnerable emotional or financial state, or the agreement was signed under duress)

What is an arbitrator?

An arbitrator is a specially-trained individual who plays a judge-like role in resolving conflicts. Family arbitrators meet with separating couples to help them to resolve their issues without going to court. Many family arbitrators are lawyers but can also be psychologists or social workers with special family law training. 

Arbitration is a faster, more private alternative to litigation, which involves taking lawsuits and disputes to court. You may also hire a lawyer though to represent you during the arbitration.

If you and your spouse cannot come to an agreement, then the arbitrator will decide for you. This is called a “family arbitration award.”

What should I include in the Separation Agreement?

Our questionnaire helps you to organize the following information in your marital Separation Agreement:

What are considered assets?

Assets are items or things of monetary value. A spouse may have sole ownership over an asset, like a family heirloom, but may also have shared or joint ownership over other assets, such as the matrimonial home. Some assets that you or your spouse might own include:

How do we divide our assets?

Some couples may leave the relationship with assets or property held solely in their name. Others may want to calculate each item’s value and then divide things equally between each other. Here are three suggestions to help you get started:

1. List all of your assetsboth jointly and individually.

2. Appraise the value of your assetsYou should seek an expert opinion for larger assets such as real estate or anything else that may be difficult to value.

3. Decide who gets what. Go through your list of assets, evaluate each person’s ownership claim, and then decide who should keep what. Consider exchanging one larger item for several smaller items to ensure an equal split.

What happens to my debt during a separation?

A marital separation does not dissolve your debt. You and your spouse must decide who will take responsibility for any outstanding debt you shared while together. Outstanding debt includes mortgages, loans, credit cards, or lines of credit.

Usually, you will not be responsible for any debt your spouse accumulated before marriage. You can avoid confusion by referring to your Prenuptial Agreement if you have one.  This agreement will specify your separate debts, property, or assets prior to marriage.

Can I revoke or change a Separation Agreement?

A Separation Agreement can be revoked so that it is no longer in effect. If the parties choose to do so, they should create a written document stating that they both agree to revoke the Separation Agreement.

A Separation Agreement can also be modified or changed. These changes must also be documented in writing. Parties can also challenge the agreement if they were under duress when they signed or if they discover information that the other party had been hiding during the document’s creation.

This often comes in the form of financial information that the other party did not disclose.

Once the couple is divorced, they would have to go to court to change the divorce order.

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