You can make an agreement with your partner to live separately without ever getting a divorce. This is called a separation agreement.

What Is a Separation Agreement?

This is a written contract partner voluntarily sign without going to court. No one spouse can make the other sign the contract. It is often cheaper and more cost effective than going to court. Like any other contract, however, it is a product of agreement. If you and your spouse agree on the issue, the separation agreement will be your roadmap. 

As part of the agreement, you and your partner can decide on issues such as property division (equitable distribution), spousal support, child custody and visitation, and child support. You can also cover things such as education, childcare for children, and other items not typically covered in a court order. The agreement should set out clearly your obligations and rights to each other, both during and even after the separation. In the event that one spouse doesn’t live up to their obligations as agreed to in the separation agreement, the other partner can enforce the agreement in court.

What to Cover in a Separation Agreement?

There is a wide range of issues to consider to ensure the financial arrangements within the separation agreement are to your satisfaction:

  • Who will pay the rent or mortgage and household bills?
  • Who will continue to live in your family home?
  • What happens to your debts like overdrafts, and loans?
  • What happens to items like furniture or cars bought jointly?
  • Should you pay or receive maintenance or child support?
  • How will you arrange childcare and visitation of children?

Once signed and notarized, a separation agreement is binding with the exception of custody and child support, which can always be modified in the future. 

Why Use a Separation Agreement? 

When you have been living with your spouse for some time, you are bound to share a lot of things such as a home, car, joint savings account, or children. You likely share responsibilities too, like bills, caring for the children, your mortgage, etc. Your separation agreement can also outline a plan to share things like pension income and pay-outs or to pay for activities, education and healthcare for your children.

The purpose of a separation agreement is to formally address issues that are of vital interest and to set out clear steps to be taken.  It can resolve all issues or only part of the issues. If a divorce is requested and you have not resolved property division or spousal support, you must request that the cour address those issues prior to the entry of a divorce decree.  A separation agreement is not a contract to get a divorce. However, if the parties do not reconcile after a one year separation and all issues have been resolved in the agreement, then all that is left to be done is for one party to file for divorce. 

A separation agreement enables you to mutually agree how to handle your separation and resulting financial and custodial issues and goes a long way in preventing any misunderstandings later. So why should you use a separation agreement instead of filing for a divorce?  First, you cannot file for a divorce until you have been separated for one year. Second, you and your spouse may agree on many or all things and wish to avoid court on those issues. If you agree on some things and not on others, you can sign a separation agreement on the agreed upon things and pursue court action on the others.  

Our attorneys at Perry, Bundy, Plyler & Long, LLP can guide you through the negotiation process and help you prepare the agreement that addresses your situation. Get in touch with us today!

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