The Basics of Separation Agreements
A separation agreement is a written contract between a husband and a wife that governs certain rights and obligations that will be effective upon the date that the parties separate. Generally, a separation agreement should be drafted prior to the time that a Complaint in Divorce is filed with the Court. Once the Complaint is filed, the vast majority of issues related to a divorce will be adjudicated in the court system, and the Separation Agreement will be replaced by a Divorce Decree (perhaps incorporating all or part of the Separation Agreement). In other words, once a Complaint in Divorce is filed, the Parties are no longer "separated" and therefore a Separation Agreement is no longer effective .
The typical issues addressed in a separation agreement include: child custody, child support, alimony, equitable distribution, income tax returns, income tax exemptions, life insurance, medical insurance, will provisions, powers of attorney and other estate planning documents. In addition, separation agreements generally contain language that addresses the fact that the parties have been living separate and apart, and plan to live separate and apart indefinitely until the entry of a final divorce decree. These terms are normally included in the agreement toward the back end in a boilerplate section that is entitled, "Miscellaneous Terms." In most cases, matters not covered in a separation agreement may still be the subject of a court order by way of a divorce decree.
The Importance of Consulting a Separation Agreement Attorney
A separation agreement is a legally binding contract between you and your spouse that sets the terms of your separation. It outlines issues like child custody and support, spousal support, division of marital property, and liability for debt. Changes to government regulations can have a ripple effect in the separation process, making consultation with an experienced attorney essential. A knowledgeable separation agreement attorney will ask you a series of questions regarding your specific situation and goals, advising you on how to create a separation agreement that meets your needs.
Creating a separation agreement without the help of a skilled attorney may cost you dearly. Adversaries can easily take advantage of the weaknesses in your document, including your lack of familiarity with current laws and how they affect the stipulations you include in your agreement. An experienced separation agreement lawyer, however, has the experience to create an agreement that your spouse cannot challenge and will help you to handle any disputes that arise during negotiations. By failing to consult with an experienced separation agreement attorney, you jeopardize your legal and financial security. Unfortunately, many individuals who neglect to seek legal representation end up agreeing to unfavourable terms and giving up significant legal rights that could otherwise preserve their standard of living.
Essential Components of a Separation Agreement
One of the key elements of a separation agreement are the provisions concerning the division of assets including the division of bank accounts, real estate, and retirement accounts. Many times I will have parties who have been separated for an extended period of time attempt to divide an asset that is fully ten years removed from the date of separation. By that time the other spouse could have assumed full responsibility for the asset in question as well as costs associated with the asset.
Key provisions of a separation agreement include:
- The agreement must provide for the division of all assets and debts acquired by the parties during the marriage (marital property)
- The agreement must provide for the payment of child support.
- Spousal support and alimony must also be addressed.
- In addition the agreement must specifically divide a party’s debts if this is not done, the debt will transfer to the party who has the account.
- If the parties have children it is very important to define custody and the rights of the parties with respect to their children.
- Parties often agree to a process of alternative dispute resolution; i.e. mediation and exchange of information in the event of future conflicts
- The agreement should also provide for the payment for college expenses on behalf of the intervening children.
- The agreement should also contain provisions as to pension and retirement benefits.
Hurdles to Avoid Without Legal Representation
Pitfalls Often Encountered Without Legal Guidance
If you are opting to write your own separation agreement, it is important that you are aware of the potential for both unintended and intentional error.
Examples of Unintentional Error
Include the following:
Example of Potentially Intentional Error
It is common for one spouse to fear the other spouse would get a better deal by hiring his or her own lawyer after a separation agreement is drafted. There is also the fear that even a minor mistake made by the spouse who handles the document for the couple could lead to it being thrown out or changed substantially by a judge later on. This fear can lead to one party trying to put in provisions in the agreement that would make it difficult or even shameful for the other spouse to seek legal representation at some point in the future.
Intentional Errors
It is not uncommon for one spouse to try to poison the well , and include language in the agreement that would humiliate the other spouse, or even make him or her liable for additional child support if the income of the paying parent were to change. It is equally common for one spouse to decide that the other is primarily responsible for the breakdown of the marriage, and then load the separation agreement with language designed to establish the principle and severity of that claim in court.
This is not to say that there are not justified concerns about the potential behavior of the separating spouse. However, it is almost always a better idea to include a provision allowing the agreeing party to consent to the approval or rejection of the separation agreement than attempting to snuff out all avenues for the spouse to act in what you consider to be an unreasonable fashion in the future.
Selecting an Attorney That Meets Your Needs
When selecting a separation agreement attorney, it is important to choose one who will meet your specific legal needs. You should consider the attorney’s experience in handling similar cases and whether he or she specializes in family law matters. It may also be helpful to review client testimonials and ratings through the attorney’s website or third-party websites that provide reviews of divorce lawyers. Reputation in the community and bar association can be another strong factor when deciding on which separation agreement attorney to work with. Additionally, you should consider his or her availability and familiarity with family law in your jurisdiction.
The Steps to Drafting a Separation Agreement
When a married couple separates – whether they obtain a Judgment of Legal Separation or not – they may choose to define the terms of their separation in a legal document called a separation agreement. Even an ordinary separation agreement that does not deal with the division of property or support is a potentially complex document that can involve the equivalent of the drafting of a simple contract, the negotiation of a prenuptial agreement, and the drafting of a divorce settlement agreement all at once. And like all legal documents, it can be complicated by the requirement of having it prepared by a separation agreement attorney. Where the parties already have lawyers, they might negotiate the agreement together, with the attorneys getting involved to finalize and draft the agreement. Where parties do not have lawyers, much the same process happens but they may or may not have the intervention of a lawyer. In either case, the process is often called "negotiation" – a term that in the court system refers to the giving and taking that goes on between the parties in preparing a marital settlement agreement. In this case, however, because the parties are separated, they are negotiating a much more complex agreement referred to as a legal separation agreement.
The process begins with the initial negotiation of the terms of the agreement. Because we are talking about a legal separation agreement , this can involve such matters as the division of property, support and even the custody of children. Depending on the complexity of the issues, this could be relatively straightforward or involve many more hours than even the most detailed prenuptial agreement or divorce settlement agreement. If the parties have attorneys, they will each consult with their attorney, either face-to-face or via the telephone. If using attorneys, much of the negotiation will take place through the lawyers. The lawyer will ask a series of questions to finalize details of the agreement, and clarify what the client wants out of the agreement. The actual negotiation will take place among the parties. There will probably be several drafts of the separation agreement before it is finalized to both parties.
There are two distinct stages in the actual preparation of the separation agreement. One is the content stage where the back and forth negotiations of the parties are done, and it is clear everything has been discussed. The second is the document itself and the fine-tuning that it goes through. This includes items such as final proofreading and the incorporation of comments by legal counsel, and such factors as whether the content of the agreement meets all the legal requirements so that the agreement will function properly. Only lawyers can give the necessary legal advice to discuss the pros and cons of any provision of the agreement.