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MARITAL SEPARATION AGREEMENT: an Overview Q & A


WHEN WOULD I NEED A SEPARATION AGREEMENT?

If you are contemplating a divorce or dissolution in the near future and you still have a fairly reasonable workable relationship with your soon-to-be ex-spouse, a Separation Agreement may be a useful tool for you. A Separation Agreement creates a contract between a husband and a wife - the contract can cover issues relating to division of property, payment of debts, spousal support (alimony), child support, and child custody if children are involved. The Separation Agreement sets forth the details on how the parties shall treat these various issues when the divorce or dissolution is ultimately filed.


IS THE SEPARATION AGREEMENT THE SAME AS A LEGAL SEPARATION?

No. Contrary to popular opinion, a Separation Agreement is NOT the same as a legal separation. In those states where legal separations are permitted, a legal separation is a legal action initiated in court, where one or both spouses ask the court to grant assign certain rights and responsibilities to one or both of the parties to the legal action. The order or judgment issued by the court will set forth rules under which a husband and wife may legally live apart and will detail the responsibilities and obligations of each. (Of course, a husband and wife may choose to live apart without such a formal court-decreed arrangement).

On the other hand, at the time that the spouses enter into a Separation Agreement, the completed document is NOT to be filed by itself with any court. The Separation Agreement is a contract that states how the spouses property and other rights will be divided and assigned when or if a divorce action is file. When a divorce, dissolution or legal separation proceeding is commenced, the signed Separation Agreement should be attached to the complaint or petition that requests a court to grant a divorce (although in New York, the Separation Agreement itself must also be filed in the County in which one or both of the spouses live). The terms of the Separation Agreement are generally incorporated into the final judicial order granting the divorce. When the Separation Agreement is incorporated into the divorce order, the terms of the agreement become an order of the court and are enforceable by the court.


WHAT IS THE BENEFIT OF HAVING A SEPARATION AGREEMENT?

Instead of engaging in a long, drawn out, expensive, demoralizing and messy divorce case, the parties (on their own) can determine the best way to address certain issues, how to divide property, establish child visitation schedules, allocate debt, etc. By doing so, the best interest of the spouses and children are addressed, rather than relying on a judge to determine what he or she believes to be best for all involved. It is, most often, better for the spouses to agree on how to settle the issues that exist between them. A Separation Agreement works best when the spouses have some level of cooperation and desire to reach a resolution on these issues.


IS THIS THE SAME AS A PREMARITAL OR PRE-NUPTUAL AGREEMENT?

No. A pre-marital or pre-nuptial agreement is signed before the marriage takes place. It is an agreement that sets forth certain rights of each person to keep property that he or she owns separate so that the other person has no right to that property should the marriage end up in divorce.


WHAT IS DONE WITH A COMPLETED SEPARATION AGREEMENT DOCUMENT?

A Separation Agreement creates a contract between a husband and wife on how marital property and debts will be divided in the event of a divorce. As is clearly set forth in the instructions, the document is NOT a divorce, nor is it a document that is filed with any court to initiate a Divorce.

The Separation Agreement is a binding contract. If or when a Divorce action is ultimately filed, the Separation Agreement is attached to the Petition for Divorce, and the terms of the Separation Agreement are incorporated into that petition.

 


Learn More Want to learn more about a Separation Agreement?
See our Q & A series on Separation Agreements at 'Ask Standard Legal' >


Learn More Ready to create a Separation Agreement legal form?
See Standard Legal's Separation Agreement Legal Forms Software here >



DISCLAIMER REGARDING LEGAL ADVICE: None of information contained on this web site is intended to constitute legal or other professional advice, and you should not rely solely on the information contained on the site for making legal decisions. When necessary, you should consult with an attorney for specific advice tailored to your situation.




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