Family Law what is a Separation Agreement

The marriage has hit the rocks, and it seems no longer wise to continue to live together; however, you are able to discuss things about your family, either directly, indirectly through your lawyers, or through the involvement of a mediator. The question that faces you is: how do you divide up the “marital pie”? The marital pie includes several different slices, some but not all financial. Can you reach an agreement that carries some legal weight, and which helps you know your respective rights and responsibilities? Perhaps you can, through the use of a Separation Agreement.

A Separation Agreement is a written document through which a couple resolves and puts into writing their agreement on the various aspects of a marriage.

A Separation Agreement can have both short-term and long-term effects. In the short term, it becomes an enforceable legal document once properly drafted, and signed by both parties, and if it contains the legal formalities of witnessing, affirmance, or “acknowledgment” (an actual legal phrasing). In some states, the parties can specify in the agreement the length of the agreement’s “life”, after which it will have no further validity. Frequently, however, it lasts until revoked, replaced, or subsumed in some other document or procedure. It is a document which sets out the ground rules for living apart as if single (with the exception that the parties are “legally separated” and not divorced, so, without more, neither can marry someone else.

One long-term effect of a Separation is a possible legal presumption that the provisions of the Separation Agreement may be the terms of a subsequent divorce – and that presumption is stronger, the more recent the signing of the Separation Agreement. Therefore, the potential that this will be a long-term “contract” should not be ignored. What you agree to in the Separation Agreement may be what you will be required to live with for an extended time, or for the rest of your life (even if there is no subsequent divorce) – or even, in its effect, beyond the time of your death.

Another long-term effect is that the existence of a proper Separation Agreement may be the basis, or even the grounds, for a subsequent divorce. In NY, for some time now, there has been a ground for divorce which requires separation under a Separation Agreement for a period in excess of one year. In addition, NY now has its own form of “no-fault divorce”, which requires that all of these side issues be resolved by Court Orders or written agreements settling all issues except the divorce itself prior to the commencement of the divorce action.

There are a few areas that are considered in most Separation Agreements. These can include:

Children: legal custody of any children, determining the primary parent-figure for legal purposes such as residency, school district, parental planning and decision-making.

Placement: where and with whom the children will actually live, at what times and for what duration – not the same thing as legal custody.

Child support: who will make payments for the on-going support of the children, and in what amount and frequency? Payments as agreed may also include provisions for children’s health insurance coverage (who will provide it, who will pay for it, and how will the parents divide the responsibility for co-pays and medical expenses which are not covered), day care expenses, special payments for clothing, or sports or musical equipment, private school expenses, or college expenses. What might cause the end of the obligation – age, independence, military service?

Alimony (“spousal support”; “maintenance”): will there be payments from one spouse to the other; what amount, from whom/to whom, and for how long? What factors will trigger an end to the obligation of payment?

Division of real property: what happens to any house or land, including the marital home? Real estate can be granted to one party or the other; it can be divided between the parties; or it can be placed on the market, and sold, with net proceeds being divided between the parties. Proportions can be established in a Separation Agreement.

Division of “personal” property: how will “things” be divided? Who gets the TV? The computer? The cars? How will rights to each other’s pension be divided – or will they be divided at all, as opposed to each party keeping his or her own, free of claims by the other party?

Beyond these “big” considerations, there are a variety of things commonly addressed – the “boiler plate” ingredients which may appear without major variation, to cover the “legal bases”. These may include common questions, such as: who “takes” the children for tax purposes, and is there an annual rotation for that? Who pays the lawyers? These may also include common statements, such as: this settles everything, there will be no future additional claims; both side have made full and honest disclosure of assets and liabilities; neither will make any additional claims against the estate if the other party dies; both will have the right to live apart as if single, free from interference by the other party.

Once all of this is included in the document and in proper form, it is to be signed by each party. Individual states prescribe the form required for the witnessing of the signatures; often a simple notarization by a Notary Public may not be enough, and the failure to meet the state’s requirement in this area leaves the parties with a document that may be difficult to enforce at all, and impossible to use as the basis for a later divorce.

OK; you’ve agreed on all of these things and both of you have signed; what next?

Usually it is a “contract” once the latter of you signs it; it may, however, have to be filed in the County Clerk’s Office for it to be used as the basis for a divorce. Each party should be provided with a copy – often, a certified copy. Some states provide for another document to be the document actually publicly filed; on the understanding that it is no business of the general public as to what was actually agreed upon, but only that there was a proper Agreement, this substitution document will only have the identity of the parties, the recitation that there is a Separation agreement, and the dates that each party signed this additional document and the Separation Agreement.

If, however, the two of you change your mind, you can nullify the document. Since the document presupposes, and often states, that it is based upon your decision to live apart under its terms, in some jurisdictions it may be enough just to resume cohabitation for some extended period of time (longer than a weekend’s joyous romp, with Monday regrets). Some jurisdictions – and some Agreements – want more: a written document, signed with the same formality as the Agreement, specifically renouncing and revoking the Agreement.

As a result, a Separation Agreement is a document with many faces; it can be short-term, reconsidered and revoked without permanent effect; or it can be the document that will control how portions of your existence will be regulated for the rest of your life – and beyond, affecting your heirs. It will probably include components which are found in similar form over and over again, but may contain components remarkable and rare and based upon the particular facts of these particularly parties.

Whatever path it follows, the Separation Agreement’s significance should not be understated, and its provisions not accepted without careful thought to the future, as well