Separation Agreements

This article discusses the importance of legal separation agreement. Topics discussed include what should be in a legal separation agreement, how to resolve disputes arising from marital separation agreements, and how to enforce a legal separation agreement. The contract that contains all the terms and obligations of a legal separation is call a “legal separation agreement.” Though the parties to a legal separation are still married, the terms of the legal separation agreement create enforceable obligations that must be adhered to by each of the parties

Negotiation and Settlement

Because negotiating a legal separation agreement is often similar to negotiating a final divorce settlement, it is imperative that the parties follow much of the same advice. Prior to negotiating a legal separation agreement, the parties should:

• Make sure their state recognizes legal separation agreements (not all do);
• Complete a financial affidavit as required by most jurisdictions for divorces;
• Negotiate from positions of equal strength and consider the use of a mediator if you reach an impasse; and
• Consult with an attorney prior to singing any documents regarding a legal separation agreement.

What Should a Legal Separation Agreement Cover?

A good legal separation agreement should cover each and every issue the parties must address in the course of their daily lives. At a minimum, a legal separation agreement should cover the following:

• A Parenting Agreement (where applicable), which sets out legal custody, a visitation schedule, and all other issues relating to raising the minor children;
• A child support order (where applicable), addressing the amount of child support to be paid per month, how the child support is to be paid, when the child support terminates, and any penalties for delinquent payments;
• A spousal support order (where applicable), stating whether the support is short or long term, the amount of the monthly support, how said support is to be paid, when and under what conditions the support will terminate, and whether the support is reviewable or non-reviewable;
• A detailed list of the personal property, furnishings, and automobiles each party is to keep in their possession during the separation;
• A provision regarding what is to happen to each and every financial account jointly owned by the parties during the separation;
• Detailed instructions regarding how the parties are to file their income tax returns during the separation.

Handling Disagreements

While a good legal separation agreement will contain a provision for dealing with disagreements, not all do. While the first step regarding disagreements is to attempt to discuss and resolve the situation amicably, the parties may want to consider using a qualified professional mediator to solve minor differences. The best way to avoid future disagreements is to negotiate a well-drafted legal separation agreement that addresses a broad range of contingencies.

Enforcing the Agreement

In the event that one of the parties refuses to live up to his obligations, there are a number of steps that can be taken to enforce a legal separation agreement:

• Contact the lawyer that helped negotiate and draft the legal separation agreement. Many times a pointed letter from an attorney can go a long way towards getting a legal separation agreement back on track;
• If the legal separation agreement provides for a method of handling  disputes, such as submitting the issue to a mediator, the parties should do so immediately;
• As a last resort, the aggrieved party can return to court and ask the judge to hold the non-compliant part in contempt of court for failing to comply with the terms of the legal separation agreement.

After a Legal Separation

Eventually, the parties may wish to end the separation, either because they intend to divorce or because they have reconciled. Because legal separation agreements are easily converted to permanent divorce decrees by the court, it is essential that the parties negotiate a separation agreement they can live with on a long-term basis. If the parties choose to reconcile, they must simply return to court and advise that they wish to rescind the legal separation.

Once your legal separation agreement has been drafted, make sure that you read, read, and read it again. Highlight any terms and wording that you don’t understand. Do not sign a separation agreement until you are certain that you understand every word on every page of the agreement. Knowing the terms of your separation backwards and forwards is the most important thing you can do to protect your legal rights in the future.