When spouses begin to live apart with the intent to end their marriage sometime in the future, they have separated. Separation can mean several things. Most states require a couple to live separate and apart for a period of time, usually 6 months, before a divorce action can be filed. Additionally, divorce is complicated and expensive and the couple may want to delay the process for a time beyond the waiting period with a prolonged separation. Some couples may have intertwined business interests that make an immediate divorce difficult to obtain. In all these situations, a separation agreement can provide a measure of security to the couple concerning their rights and obligations to each other in the interim before a divorce is filed.
A permanent separation between a married couple who do not intend to divorce and that is sanctioned by a court is a legal separation. In that case, the separation agreement divides and settles the ownership of property, right to income and issues concerning children without the spouses losing their marital status. Typically, however, separation agreements are “made in contemplation” of divorce rather than as permanent legal separations.
Most states have laws recognizing legal separations. While legal separation is not a divorce, it is obtained through a court action. Unlike a divorce, obtaining a legal separation does not require a waiting period. The parties can fix their rights and obligations to each other immediately via the courts rather than waiting several months. A couple may want to avoid divorce and seek a legal separation because of religious reasons, tax and insurance considerations or in order to continue to receive state or federal benefits.
The grounds for obtaining a legal separation from the court vary among state laws but typically a legal separation is granted if the court finds that:
- the parties are incompatible;
- there are irreconcilable differences causing the breakdown of the marriage;
- one of the spouses has abandoned the other for at least a year;
- one of the spouses has committed a felony and is incarcerated in prison; or
- there is evidence of ongoing domestic abuse and violence.
Some laws require a finding that continuing their status as married persons protects the parties’ financial, legal, social or religious interest. Either the husband or wife may file for a legal separation.
A legal separation does not return the parties to an unmarried status. Any rights and obligations that married couples have to each other continue to exist unless they were modified by a decree of legal separation.
A legal separation gives the court the power to make decisions concerning children of the marriage. Additionally, if a divorce action is filed, the court that issued the decree of legal separation has jurisdiction over the divorce as well.
When a marriage dissolves, issues surrounding the division of property, temporary support payments, and the support and custody of children can be decided by the court, or preferably, by the spouses themselves. If the divorcing spouses can agree on major points, then a separation or settlement agreement avoids expensive legal maneuvers and inevitable delays that result when the parties must go to court. The UMPA approves separation agreements as a way of promoting the amicable settlement of disputes between the spouses.
Because laws specify that a divorce action cannot be filed until the spouses have lived apart for several months, the separation agreement can provide direction for basic financial support, payment of expenses and other matters in the interim. Additionally, the court can approve the separation agreement once the waiting period is over and the divorce action is filed, so that the couple can continue to operate under their agreement.
Generally, however, the separation agreement addresses more permanent matters: division and ownership of property, right to benefits and insurance, and medical coverage. Separation agreements that include provisions for issues typically decided by the court are also known as marital separation agreements or MSAs.
TIP: The agreement is also termed a “property settlement agreement” (or PSA) where the spouses have come to a final agreement on the division of their marital property.
Effect on legal rights to property
A separation agreement supersedes any legal rights a spouse normally has to certain property. The parties can agree to any division or ownership of property that suits them. As long as the agreement is valid, the provisions are enforceable. For instance, a spouse generally shares in retirement benefits accrued by the other spouse. However, the right to a portion of the benefits can be waived by agreement. Likewise, marital property can be converted to separate property under a separation agreement. One spouse can assume the entire responsibility for debts even though the other would be liable under the law. The separation agreement can even require a spouse to make certain provisions in her will.
SIDEBAR: Valid agreements will be overturned if the provisions are completely inequitable and unconscionable. For instance, if the agreement leaves the wife destitute without any property, it is invalid.
Effect on legal rights regarding children
The rights of children are not affected by their parents’ separation agreement unless the court approves the terms of the agreement and incorporates them into the final divorce decree. Additionally, a court always has the ability to modify support, custody, visitation and any other issues concerning children while they are minors. For instance, the court can agree to the amount of child support set out in the separation agreement and make it part of the final decree, but that amount can be modified at any time without regard to the agreement.
TIP: If the court-approved separation agreement provides for additional support amounts beyond what the court orders, that amount is a debt the ex-spouse owes under the terms of the agreement.
What should be included in a separation agreement?
The agreement can cover:
- a spouse’s right to alimony and support;
- who resides in the home;
- the ownership and use of vehicles and other property;
- the ownership of personal property;
- a division of household goods and furnishings;
- a division of cash, bank accounts, IRA’s, etc.;
- insurance coverage;
- the custody and visitation of the children;
- the support of the children (including clothing, activities, school fees, etc.);
- the payment of medical expenses;
- the payment of credit cards;
- the payment of mortgage, utility and household bills; and
- whether joint or separate tax returns will be filed.
Does a separation agreement have to be in writing?
Yes. Laws require that separation agreements be in writing.
TIP: A written agreement is not required if you and your spouse made your agreements in open court before the judge. By speaking in court, your separation agreement is “on the record.”
Is a separation agreement valid if I signed without consulting an attorney?
Yes. The fact that you did not speak with a lawyer before you entered into the agreement does not make it invalid as long as you signed it freely and voluntarily. You must be able to show that you signed the agreement free of fraud, duress or undue influence.
I finally signed off on a separation agreement because my husband called me repeatedly at work asking me to sign. Did I sign under duress?
No. The pressure you received from your husband to sign is not necessarily duress. If you could have continued to refuse to sign but signed anyway, then you entered into the agreement freely and voluntarily.
My husband threatened to make our divorce expensive and protracted if I did not sign the separation agreement. Is this duress?
No. Your husband’s threat is really a promise to do what he has a right to do – file for divorce and litigate against you.
TIP: For a threat to constitute duress there must be a promise to do an unlawful act unless the threatened person does something they have a legal right not to do. For instance, the wife has a legal right to refuse to sign the separation agreement. If the husband says he will kidnap their children unless she signs, his threat amounts to duress. The agreement is invalid if the wife signs it.
What happens if one spouse breaches the separation agreement?
If it has approved it, the court will enforce the agreement. The breaching spouse can be held in contempt of court and fined or sent to jail. If the separation agreement is not yet part of a court proceeding, the spouse can file for divorce and ask the court to enforce the provision that has been breached.
TIP: The separation agreement should include a penalty clause providing for restitution or payment if one of the parties breaches the agreement.
Do we have to file for divorce to enter into a separation agreement?
No. At the time you file for divorce, the separation agreement can be approved by the court and eventually incorporated into the final divorce decree.
Does the court have to approve the separation agreement?
No. Your separation agreement is not binding on the court until and unless the judge finds that the agreement is fair and voluntary.
Can the court change the separation agreement or order a different division of property than that to which we agreed?
No. The court can only approve or reject the agreement. If the agreement is rejected, the court will divide the property in a just and equitable manner as required by law.
TIP: Once the agreement has been approved by the court and made part of the final divorce decree, the court cannot modify it. For instance, if the agreement gave royalty payments to the husband, the court cannot later decree that the payments go to the wife and children. However, the court can increase the amount of child support.
Can we change the separation agreement?
Yes. The agreement can be changed or modified just like any other contract. However, the changes must be in writing and signed off on by both parties.
TIP: Even after the agreement is made part of the final divorce decree, the parties (not the court) can mutually agree to modify provisions concerning the division of property.
SIDEBAR: The agreement is always a contract between the parties. The fact that it becomes part of a judgment does not change its contractual nature. The division of property was made pursuant to a contract between the parties rather than a judicial determination.
Our separation agreement sets up the child support my husband must pay me. Can the court change the amount?
Yes. Provisions in the agreement concerning support, custody, visitation and other matters concerning the children are not binding on the court. The judge makes her decisions based on legal child support guidelines and the best interest of the children.
In the state in which we live, ex-spouses do not have the right to alimony. Can our separation agreement provide that alimony will be paid after divorce?
Yes. Your agreement can provide for contractual alimony.
My husband and I never went through with a divorce and are living together again. Is our separation agreement still valid?
Yes. Your reconciliation only revokes the separation agreement if you both have the express intention to abandon the agreement. Merely living together or cohabitating does not terminate the agreement.
SIDEBAR: Resumption of sexual relations, joint management of the household, commingling of money, along with cohabitation, are facts that tend to show that the parties mean to terminate their separation agreement.
TIP: To avoid confusion as to whether the separation agreement is revoked if the couple reconciles, the agreement should include a provision that terminates it if the parties begin cohabitating again.