What is a Separation Agreement in PA?
A Separation Agreement is a contract between you and your spouse where you agree on various and numerable issues including, but not limited to, child support, alimony, equitable distribution, exclusive possession of the marital residence, payment of certain bills and expenses, tax matters, mortgage and home equity line responsibilities, health insurance, life insurance, retirement accounts, and any other topic(s) that may be relevant to you and your spouse. Specifically, the Separation Agreement addresses issues during the separation and the post-divorce period. It can be suitable for parties who have been married for a short or long period of time. However, if you have children and are considering signing a Separation Agreement, you must include the issues related to child and spousal support and any other topic(s) related to the child(ren), such as custody, parenting time, medical expenses, extracurricular activities, and other miscellaneous issues.
Sometimes , the Separation Agreement does not result in a divorce and rather is utilized as part of a legal separation between two spouses. A Separation Agreement can also be entered into for the purposes of pending divorce litigation wherein issues surrounding spousal support, alimony, and child support may be pending.
PA Divorce Client Tip:When signing a Separation Agreement, make sure you do not relinquish any rights or income. This is a three step process and a Separation Agreement is only part one of the final outcome. The second step is the divorce action which determines equitable distribution issues. Lastly, the third step involves equitable distribution and the negotiation of the terms relating to both of your assets and liabilities.
A Separation Agreement is not a Divorce Settlement Agreement. A Divorce Settlement Agreement is where you and your spouse resolve all PA Family Law issues, including Equitable Distribution, Child Support, Alimony, Health Insurance, Life Insurance, Divorce Costs, etc. and reduces such agreements to writing during the course of pending litigation with the ultimate goal of resolving all of your Family Law issues.
Elements of a PA Separation Agreement
There are numerous areas that are addressed in a typical written agreement. The major areas include division of real property, bank accounts, and retirement funds; division of personal property and vehicles; real estate and personal property mortgages and liens; household bills and expenses; alimony, child support; health insurance and other benefits; tax deductions and claiming children after separation; custody and visitation; and insurance on children.
A couple can come to a general agreement on these items and communicate those provisions to their attorney. Your attorney will then draft a written separation agreement that includes those provisions, which both parties will sign in appropriate time.
Requirements in PA
The legal requirements to draft an agreement that is legally binding during the period of separation in Pennsylvania have been set forth both legislatively and by court decision. The Pennsylvania Divorce Code provides: "(a) Contents. Any written agreement executed by husband and wife after the date of marriage and prior to the date of entry of a decree pursuant to section 3323 (relating to other grounds for equitable distribution) shall be valid and enforceable if both spouses are represented by independent counsel. In the absence of such representation a written agreement shall be valid and enforceable if it meets all of the following conditions: (1) It is in writing. (2) It is signed by both parties. (3) It is notarized. (b) Agreements entered into prior to July 1, 1980. Any written agreement executed prior to July 1, 1980, which, prior to that date, was valid and enforceable and is not subject to challenge on the grounds that the required distribution under section 3502 (relating to decree of equitable distribution), 3503 (relating to valuation of marital property), 3504 (relating to equitable consideration of marital property) or 3505 (relating to allocation of marital property), may be revoked or modified only by a writing signed by both parties and notarized." 23 Pa.C.S.A. Section 3105. It has further been held, by the Superior Court, that one cannot contract around the prohibition against retroactive effect of a Separation Agreement as found in the Divorce Code. "What is expressly prohibited by the Divorce Code, 23 Pa.C.S.A. s. 3155(a)(7) cannot be accomplished by private contract between the parties. The waiver of this statutory requirement cannot be done by private contract and must be accomplished by judicial order at the time the divorce is entered." "The Pennsylvania Divorce Code, 23 Pa.C.S.A. s. 3101, does not permit parties to a marital contract to select the appropriate time from which an equitable distribution award may be made after a future separation. We have reiterated in a number of cases that the distribution of marital property and all on-going economic rights arising out of the marital relationship must ultimately be determined as of the date of divorce. Specifically, we have stated that under the Divorce Code, 23 Pa.C.S.A. ss 3101-3206, a divorce court must determine the value of the marital estate as of the date of the divorce decree." "Given the terms of the agreement before us, we are bound by the Divorce Code to conclude that the agreement’s retroactive January 1, 1989 effective date is null and void and cannot serve as the basis for our calculations. Rather, we must determine the value of the marital estate as of the date of divorce and not some time prior. To do otherwise would eliminate the purpose of the provision and create two potentially divergent points in time from which the court could determine the equitable distribution of property. This contravenes the intent of the Divorce Code." Jaskot v. Jaskot, 27 D. & C.4th 300 (1995).
Separation Agreement in PA v. Divorce
A separation agreement is technically a contract entered into between spouses. Although it is a contract, it has legal consequences under Pennsylvania law. However, even though you separate the first day you live apart from your spouse, and you may enter into an agreement on that day to distribute assets, pay alimony or child support, and address all the other issues that generally come up in a divorce, the date of separation is not the date you become legally separated . You are not divorced until a COURT APPROVES your agreement and there is a divorce decree entered by the court.
So, while technically you may be able to become a "legal separate" on the day you first separate, and you can enter into a "separation agreement" on that date, until a court is involved to approve the agreement and the terms included in it, you can’t get a divorce.
Advantages of a Separation Agreement
Separation agreements are advantageous for a number of reasons. First, they can reduce conflict within the marriage because the parties will not be living in the same household. If things become uncomfortable, one party need only retreat to their own home. They do not have to scream and yell about how they are going to get divorced in front of the kids, for example.
Second, it will provide certainty and protection for either of the parties. For example, a separation agreement can provide for a period of time by which either party can change their mind. This is known as a cooling-off period and can be as long as you want it to be. The longest I have seen a separation agreement provide for is five years, and the one that I am currently working with now has a cooling-off period of six months. In my opinion, this is a great idea. Separation can be a very big shock to the system. It can take a while for you to adjust to non-normalcy. Having a period of time to try and adjust to living apart, while having some level of certainty, can be beneficial for everyone involved. Likewise, the period of time that either party can change their mind may be beneficial.
Third, it can provide protection for any and all marital property. This is particularly important if one party is a high earner or business owner. Having a separation agreement can alleviate concerns that your spouse will try to take part of your business or other significant assets simply because he or she has a legal interest in them. Separation agreements can also set forth the amount of support that will be paid during the pendency of a divorce.
Finally, a separation agreement can help set the tone for a divorce. For example, a separation agreement can provide that you will use a mediator for divorce purposes. This can save both parties considerable fees and is more effective than just having a court date. Separation agreements can also help prevent one party from having a huge advantage over the other in terms of getting certain documents or information.
These are just a few examples of how a separation agreement can work to your benefit. It is best to involve an attorney to ensure that the separation agreement is fair and equitable and will not have unintended consequences when it comes time to finalize your divorce.
How to Create a Separation Agreement in PA
While separation agreements can be fairly simple documents, there are certain provisions that should not be overlooked when drafting them. As noted above, while allowing individuals to be legally separated without first proceeding through a divorce, separation agreements are also used to resolve some aspects of the divorce process itself. Because of this, the parties to a separation agreement must cover all of the issues they want to resolve before the divorce is finalized in their separation agreement.
Deciding what should and should not be included in separation agreements can be tricky, so it’s important both parties sit down with their attorneys and come to an agreement on what provisions should go into the agreement. As your divorce attorney will explain to you, this does not necessarily mean that negotiations must be completed before the separation agreement is entered into. In some cases, a person can enter into a separation agreement with some terms still to be finalized. For example, if the parties have agreed to a child support payment amount, but have not yet agreed on a college contribution , it is not uncommon to include in the separation agreement a provision that the parties will agree on a college contribution amount later or that a court will determine the college contribution amount at a later date. In such a case, the agreement would specifically override the default position under Pennsylvania law for how to determine the college contribution amount. In other words, it is best to write in the agreement that the provisions on college contribution will be decided by the court as opposed to allowing the default provisions of Pennsylvania law to apply. A few other provisions to keep in mind for your separation agreement are: In any case, whether you are considering a separation agreement or a property settlement agreement, be sure to think about any items you may want to include to ensure you are no further constrained by them once the divorce is finalized. Again, as noted above, separation agreements are generally longer than property settlement agreements, but negotiating them can save much time and energy down the road. If you have questions about separation agreements or other aspects of divorce law in Pennsylvania, please contact us.