Some people view legal separation as a trial divorce; others -- because of their personal situation or religious beliefs -- use it as an end in itself. Regardless, agreements to legally separate are legal documents that should cover the same issues as divorce settlement agreements and must be treated with the same seriousness. In many cases, it pays for those separating to get legal counsel to assist in resolving the issues and preparing a binding written agreement for court approval.
Legal Separation Versus Divorce
Legal separation is much closer to an actual divorce than it is to simply living apart. In a legal separation, like a divorce, marital property is divided, child and spousal support is determined, and custody issues are resolved. In fact, a legally separated couple looks very much like a divorced couple except for one critical point: if you aren't actually divorced, neither spouse can remarry. While nothing stops a couple from physically separating in any state, legal separation is only an option in states with laws that provide for this method of formally terminating the relationship.
Property and Debt Division
When you contemplate preparing a legal separation agreement, one issue at the top of the list is property division: who gets what, who pays what. Like divorce settlements, legal separation settlements often are drafted with the state's laws about marital property division in mind. States divide up into two camps on this issue: community property states, where each spouse is entitled to half of all revenue earned by either partner during the marriage as well as half of any property purchased with that revenue and equitable division states, where courts try for a fair division of property rather than an equal one. The latter approach can mean that one spouse's separate property may be awarded to the other spouse's share of marital property.
Child and Spousal Support Issues
You need to work out support issues when you draft a legal separation agreement. Because the very purpose of the legal separation agreement is to separate one household into two, you must determine how much child support is appropriate under your state's support formula, taking into account the number of children and the income of each parent. If one parent has been staying at home with the kids, or there is a great disparity between the incomes of the two, spousal support could also be considered. States look to several factors in awarding spousal support, such as the duration of the marriage and the income potential of each spouse.
Child custody is another potentially explosive topic you must negotiate and resolve before writing a legal separation agreement. Legal custody means which parent has the right to make important life decisions for minor children, such as education and religion -- parents often share legal custody. Physical custody means where the children will live most of the time. The parent who does not get primary physical custody is generally entitled to regular visitation, and a schedule should be put into the settlement agreement.
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