Legal Separation Agreement Vs. Decree of Separate Maintenance

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Divorce isn’t always the best, most immediate solution when a marriage experiences problems. Spouses might have concerns about losing insurance coverage or other benefits if they end their marriages, or they might just need time apart to think things through.

A separation agreement or a decree of separate maintenance allows them to set terms for separation without actually ending their marriages.

Written Separation Agreements

Spouses can negotiate the terms of their separation either on their own or perhaps through a mediator and memorialize those terms in a written separation agreement. The agreement can be comprehensive and include provisions for spousal and child support, division of debts and property, custody and visitation terms, and even issues of health and day care for children.

The agreement becomes a binding contract when it’s signed by both spouses. As such, either spouse can ask the court to enforce it if the other fails to abide by its terms, although some states require that the agreement must specifically state this right.

Separation Agreements Do Not Limit Parental Responsibilities

Parents cannot use a separation agreement to avoid or limit parental responsibilities. It’s unlikely that a court would enforce an agreement that provides that a noncustodial parent will pay little or no child support or cannot see her children.

Effect of Reconciliation on a Separation Agreement

Agreements can become unenforceable in some states if spouses begin living together again with a clear intent to reconcile. Spouses can later declare the agreement to be null and void if they sign a subsequent statement to that effect.

The Legal Definition of Separate Maintenance

The terms “separate maintenance” or “maintenance” technically translate to financial support provided by the higher-earning spouse to the other during the period of separation. The term "alimony" refers only to payments made subsequent to divorce, but the same formulas and guidelines are typically used in either case. They can vary by state, as can terms for the duration of financial assistance.

A separation agreement might be called a separate maintenance agreement in some states.

Decrees of Separate Maintenance

A decree is an enforceable court order as opposed to a binding contract. Decrees can address all the same issues as separation or separate maintenance agreements: financial support, assets, debts, child support and parenting time.

Getting a decree begins with filing a complaint or petition with the court. In many states, spouses will need “grounds” – a legal reason, such as adultery or irreconcilable differences, recognized by the state – to file for divorce. In fact, the entire separate maintenance process is usually very similar to that of filing for divorce.

A separate maintenance decree can result when spouses can’t reach an agreement on their own and need the court to decide separation terms for them after a hearing or trial. Spouses who have reached an agreement can submit it to the court for a judge’s approval so its terms can be included in an uncontested decree.

Problems With Separate Maintenance

Courts won’t enforce separation agreements if it later comes to light that one spouse concealed assets or other information, or if it can be proved that either spouse signed the agreement under duress or due to threat. Courts can sometimes be wary of agreements that are reached without each spouse being represented by their own attorney.

Another important consideration is that the marriage itself lives on. Neither a separation agreement nor a separate maintenance decree can end a marriage. Spouses are still legally married in either case, so they can’t turn on their heels and marry someone else. Spouses in some states might therefore find that they’re legally liable for debts taken on by the other after the separation but before an eventual divorce.

When One Spouse Wants a Divorce

A spouse who wants a divorce rather than a separation need only file a counterclaim to the complaint or petition for separation, stating that he wants a divorce instead. And nothing bars a spouse from filing a complaint for divorce after a separate maintenance decree has been handed down by the court or a separation agreement has been signed.

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About the Author

Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.