Sometimes, couples choose to live separately before they can file for divorce. If they opt for this route, they need to sign an agreement called marriage separation agreement. The agreement is legally binding even if the state you live in does not recognize the separation. In the US, Delaware, Florida, Louisiana, Georgia, Mississippi, Pennsylvania and Texas, marriage separation is not legally recognized, but these states still view the separation agreement as a legally binding contract. So, you can download
Typically, the agreement has to be signed in front of a notary public and then filed in court, as most states require that you do this. Thereafter, the judge grants a legal order that formalizes the separation. The marriage separation agreement clearly states how the marital assets, debts and children will be managed during the separation. The terms and conditions of the agreement make it easier to process the divorce should you decide to file for it at a later stage.
Who Takes the Marriage Separation Agreement – People Involved
Marriage separation agreement is signed by couples who are legally married. It can also be used by same-sex couples in states where same-sex marriage is recognized. It is prudent to remember that legal separation in California or any other state does not always have to culminate in a divorce. Sometimes, the separation can help couples realize that they want to stay married, leading to reconciliation.
Purpose of the Marriage Separation Agreement – Why Do You Need It?
If you and your spouse have mutually agreed that the marriage is not working out and you would like to first try living apart to ensure that you want to legally terminate the marriage then you should sign a marriage separation agreement. The agreement helps to settle the practical and emotional aspects of life that you would experience once you are living apart.
Some of the reasons to sign an agreement for legal separation in NC or any other state are as follows:
- Prepare emotionally for a possible divorce
- Try to reconcile while being separated
- Discuss how finances and property will be managed
- Start a discussion on child custody and visitation rights
- Begin talks with the attorney about the divorce
Remember, once you sign separation papers, it is legally enforceable. It does not always have to have a negative outcome. Legal separation can also come with benefits. You file taxes jointly and keep the marital deduction intact for estate planning. You can also maintain your lifestyle by pooling your financial resources. Finally, if you have military benefits, like healthcare and retirement pay, you can maintain them as the military only recognizes marriage and divorce but not separation.
Contents of the Marriage Separation Agreement – Inclusions
Even if you decide to separate amicably, there will be some negotiation involved when you are drawing up the marriage separation agreement so that you are on the same page and there is no scope for dispute later on. You can use a separation agreement template to customize your agreement. Some of the things that should be included in the agreement based on your situation are:
- Which spouse will live in the family home?
- Who will pay the mortgage, utilities and home maintenance?
- How will the money in the bank accounts be divided?
- Who will be responsible for paying the current debts? Will it get divided or will one spouse pay them?
- What happens to assets like retirement accounts, investments and stocks?
- Does one spouse require alimony or spousal support? How much?
- Who will pay for child support and child care?
- Who will get the car and other expensive items that you co-own?
- Who will get custody of the children? In case you decide to share the custody, how much time will each parent get and when?
- How will you share the credit cards and other joint accounts?
- At the time of filing taxes, which spouse will claim the kids?
- Who will pay for the children’s college and tuition expenses?
The separation agreement should be able to resolve the above questions, so that it becomes easier for the couple to negotiate and come to a reasonable and mutually acceptable understanding. However, the agreement will include things that are unique to each couple.
How to Draft the Marriage Separation Agreement
Drafting a marriage separation agreement does not have to stressful or tedious. Follow the steps mentioned below:
Step 1: Agree on all Issues: It is best to have a proper discussion on issues like division of debt, distribution of assets, spousal support and maintenance, child custody and support and parenting time. This will take the longest time as you may want the same thing as your spouse. In which case, the negotiation will take time.
Step 2: Find a Separation Agreement Form: You can find the separation agreement form online. All you have to do is to modify the contents so that it suits your needs.
Step 3: Fill in the Form: One of the best things about the separation agreement is that you do not have to know legal jargon to fill it up. Just make sure you are thorough with the details even if you are following your state’s guidelines on separation.
Step 4: Insert Additional Paragraphs: If you have some additional information or points that you want to mention in the agreement, feel free to do so. Just ensure that the details are concise and precise so that there is no scope for misunderstanding later on.
Step 5: Create Signature Blocks: There should be space for you and your spouse to sign and each person’s name should be typewritten underneath the space. In addition, there should be space for the notary to sign and stamp the final agreement.
Check with your county clerk how to file for separation in court. Remember, this is valid only in states where separation is legal.
You and your spouse will be emotionally raw if you have decided to separate. It is essential that you are both prepared to talk and listen for the negotiation to work. So, look for the right moment to begin negotiating the marriage separation agreement. Say what is on your mind, but at the same time allay your spouse’s fears that you mean them no harm. Make a list of things that you want and keep it handy during the discussion. It will help you begin the negotiation.
Benefits & Drawbacks of the Marriage Separation Agreement
Some of the advantages of having a marriage separation agreement are:
- It ensures one spouse continues getting insurance cover even when separated
- It can provide tax benefits and help stabilize your financial situation before your divorce gets finalized
- It creates less hassle while finalizing the divorce as you have already come to an agreement on most essential aspects of your married life
- Living apart may help you reconcile
- The agreement prevents disputes later on
Some of the disadvantages of marriage separation agreement are:
- You cannot legally marry another person as you will remain married to your spouse until you get formally divorced
- During the separation, one spouse’s finances may dwindle. As a result, when divorce takes place, the spouse who is financially sound may end up paying alimony or spousal support
- Debt incurred by one spouse during marriage is shared if you separate
- Your insurance policy may not provide coverage in case of legal separation
- Not all states recognize separation
- In states where legal separation is an option, the agreement is binding and is often used as the basis for the divorce agreement
- If you want to change the agreement after it is filed in court, you need the court’s approval to amend it
What Happens in Case of Violation of the Marriage Separation Agreement
The marriage separation agreement is enforceable even if you do not file the agreement in court. So, if one spouse violates the agreement, the other spouse has the right to file a civil lawsuit for breach of contract. This holds true even in states where the contract is not legally recognized. In such cases, the agreement becomes a private contract between two consenting adults and hence, a civil suit can be filed against the offending spouse.
In case, the agreement becomes part of the divorce decree and the spouse breaches it, it becomes contempt of order passed by the court and so, the court can punish the person.
That is why if you are opting for legal separation in Texas, Delaware, Florida, Louisiana, Georgia, Mississippi and Pennsylvania – the states that do not recognize marriage separation or any of the other states, it is best to involve an attorney so that you can safeguard your interests from the very beginning.
It is best not to violate the agreement(1) as it will cause you unnecessary hassles. For some reason if you cannot meet the terms of the agreement, it is advisable to get in touch with your spouse and explain your reasons.
In case you feel that you need some time off from your marriage, a marriage separation agreement could be just what you need. It will put everything that you agree with your spouse in black and white, so that there is no misunderstanding later on. Also, if you decide to make the separation legal or proceed with the divorce, you will not have too many hassles to resolve issues. However, do remember that marriage separation is not legally recognized in all states, but the agreement can be enforceable through a civil suit. Also, military spouses too should be aware that the military does not recognize marriage separation. In states where legal separation is an option, you can file the separation in court after getting the agreement notarized(2) by a notary public.
If you are still keen to separate, always use a sample separation agreement form that you can change to suit your individual needs.