A separation agreement, sometimes referred to as a property settlement agreement, is a binding contract between two married people who wish to resolve the legal issues arising from an anticipated divorce. A separation agreement commonly addresses issues such as the division of marital assets and marital debts; the provision of spousal support and child support; and the allocation of custody periods with minor children. It may also address other issues that need to be resolved in order for the couple to begin living legally separate lives.
Each separation agreement is as unique as the couple entering into it, however, the following are fairly standard provisions of a separation agreement.
The preamble commonly states the names of the parties to the agreement, the date of the agreement, and the reason for the agreement. The first paragraph usually looks something like this:
"This agreement between Sam Jones ("Husband") and Missy Jones ("Wife") was entered into on January 1, 2012 for the purpose of resolving legal issues arising from their marriage so that they may live separate and apart."
The following paragraphs are a series of "Whereas" statements, such as:
Whereas the parties were married on January 1, 1900; and
Whereas due to irreconcilable differences the parties separated (or intend to separate) on December 1, 2011 and can no longer live as Husband and Wife; and
Whereas the parties have three minor children who need the parties' support;
Now, therefore, Husband and Wife enter into the following agreement:
If a divorcing couple has minor children, then the separation agreement should address how the children's needs are going to be met.
First, address the children's living arrangements. Unless the children will be living an equal amount of time with each parent, one parent will have primary physical custody of the children. The other parent will have defined custodial periods, which should be set out specifically and with as much detail as the parents think appropriate. The best agreements provide for plenty of flexibility so that unanticipated opportunities for the children to share special learning experiences or bonding moments with their parents, extended family members, or friends can be accommodated.
Typical considerations include, but are not limited to, custodial periods for each normal week, major holidays, Monday holidays, Mother's Day, Father's Day, children's birthdays, parents' birthdays, and extended summer vacations.
Next, address the issue of financial support for the children. Parents are generally free to make whatever arrangements they think necessary. However, each state has its own guidelines for determining appropriate child support and it is a good idea to know them before signing an agreement.
Typical considerations include, but are not limited to, the expense of food, clothing, housing, schooling, music, dance, gymnastics and/or riding lessons, sports fees and equipment, club memberships, medical care, health insurance, child care, and summer camp.
Division of Marital Assets and Debts
Generally, when a court distributes marital debts and assets, it identifies them as one of three types: separate, marital, or part-separate, part-marital and distributes them to the husband or wife according to certain statutory guidelines. A married couple may divide their assets and debts in anyway they choose, without regard for any court's method of distribution. However, understanding the court's guidelines may be informative and assist a couple in coming to an agreement.
Typical considerations include, but are not limited to, the marital residence and the mortgage associated with it, the terms of sale, if the marital residence is to be sold, automobiles and the loans associated with them, household furnishings, collectibles, investment property, retirement accounts, investment accounts, credit card debts, business assets and debts, and the costs of children's educations.
When one spouse has depended on the other spouse for financial support during the marriage, the issue of spousal support arises. Generally, a married couple may agree on the provision or waiver of spousal support based on each spouse's resources and needs, without regard for what a court might do. However, each state has specific statutes and case law guiding courts in the determination of spousal support and understanding the court's guidelines may be informative and assist a couple in coming to an agreement.
Typical considerations include, but are not limited to, the dependent spouse's income, the dependent spouse's expenses, the paying spouse's income, the paying spouse's expenses, the assets available to a dependent spouse, how long payments will be made, under what circumstances will payments cease, and how long before either spouse retires and what happens then.
Boiler Plate Contract Language
Over the years, attorneys have settled on certain standard contract provisions (commonly referred to as "boiler plate" provisions) which are appropriate for just about any contract. These provisions are not dependnet on the contract's content, but are considered essential to the contract's integrity and effectiveness. These provisions include, but are not limited to, choice of law provisions, a requirement that amendments be made in writing, a confirmation that the parties are entering the agreement of their own accord, a promise to cooperate in doing whatever is necessary to fulfill the terms of the contract, a representation that parties have had the opportunity to consult with counsel of their own choosing, a representation of complete disclosure, a provision for the payment of legal fees if one party breaches the agreement, and a provision that support obligations are not dischargeable in bankruptcy.
A separation agreement is a binding contract that affects a person's individual legal rights and may be incorporated into a final divorce decree or order. Each state has its own set of divorce laws. Only a lawyer licensed to practice in a particular state may give legal advice as to a person's rights and responsibilities under that state's divorce law. Nothing in this article is meant to provide legal advice.
- "Negotiation and Drafting Marital Agreements"; Virginia CLE Publications; 2001
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