Creating a Legal Agreement to Separate

A separation agreement is simply a document that outlines the various agreements made by a married couple who has chosen to formally separate. Like a divorce, a separation agreement can stipulate who keeps the marital home, who gets the car and how the furniture and other property will be divided.

Separation agreements can also address issues such as custody, visitation, child support and alimony as well as stipulate unique arrangements such as access to the joint banking account, how joint credit cards will be used and how family holidays will be handled.

What a separation agreement does not do is dissolve the marriage. The parties are still considered to be legally married and do not have the option of marrying anyone else during this time.

A separation agreement can denote whether or not property and debt acquired during this time will be held jointly or separately and it can even have a time limit of validity after which the parties agree to revisit the separation and determine how to move forward.

Typically, separation agreements are created by couples who wish to separate for a period of time but who are not yet ready to take the matter to court, whether as a divorce matter or to request a legal separation.

In these instances, a separation agreement provides the couple with many of the necessary protections that a legal separation would convey but without the added expense of a court hearing.

As this type of document is essentially a contract between two parties, it is important to be honest with one another while negotiating it. You will also want to have the document notarized or at least witnessed by a disinterested third-party so that it is more likely to be enforced should you later have to go to court.

Drafting your own separation agreement requires a bit of forethought as you’ll need to be sure that you address every little detail of your life. Who will pick up the kids from school? Who will pay the daycare center? How will normal household expenses such as groceries, electric and the mortgage payment itself be handled?

You’ll also need to determine if you want the agreement to be open-ended – that is, without an expiration date – or if you prefer to set a date that the two of you can readdress your situation to see if your feelings have changed.

In addition, laws vary from state to state so you’ll want to be sure that you’re familiar with the restrictions and requirements of your jurisdiction.

You may also be interested in this book about “controlled separation” as well as this book about separation management techniques.