Should I Get A Separation Agreement?

What is a Separation Agreement? 

A separation agreement is a contract between two spouses allowing them to live “separate and apart” from one another without necessarily legally ending their marriage nor living apart.

A court, in determining whether spouses are living “separate and apart”, will look at various factors such as whether or not the parties:

• Are in a sexual relationship
• Share meals together
• Publicly display themselves as a couple
• Share a bedroom etc. 
• File tax returns as a couple

Many couples do not rush to get a divorce and thus remain separated for a lengthy period. A Separation Agreement helps to codify the terms of their relationship going forward.  

What Does a Separation Agreement Contain? 

A Separation Agreement will deal with multiple aspects of your separation, including:

1. Child Custody, Control & Decision Making;

Is it a common misconception that child custody means the residency of the child. In reality, child custody determines who is entitled to make the major decisions for the child, including decisions related to healthcare, school and religion.

2. Primary Care, Access and Visitation Rights;

This section of the Separation Agreement will typically dictate the parties’ decisions related to who the child will primarily reside with, as well as access and visitation rights for the other parent. These are usually drafted very precisely so as to avoid future disagreement and will typically include terms related to holiday schedules and exceptions to the schedule, such as birthdays and summer vacations. 

3. Child Support;

Child support is typically governed by the Federal Child Support Guidelines. Parents of a child can agree to a differing arrangement within a separation agreement, but must beware that if under scrutiny, a court will look to the Child Support Guidelines before enforcing the separation agreement and may alter your agreement as a result of any discrepancy

4. Spousal Support;

One party may be obliged to pay the other ongoing or lump-sum spousal support. Factors that play into this are the length of the relationship, how many children the parties have and  wage discrepancy between the two parties, resulting in a decrease of standard of living by the poorer party because of the separation. 

5. Division of Property, Assets and Debts

The last major section of a separation agreement involves the division of property, assets and debts. A separation agreement can be used to facilitate and codify the terms of such division, and can clarify to both parties their next steps. 

There are many other areas of your separation that a Separation Agreement can govern, and it is important to have a properly drafted Agreement in order for it be enforceable within a court, if the Agreement is ever disputed. 

What Not to Include in a Separation Agreement?

1. It is important to keep in mind that if disputed, a Judge has the authority to disregard any part of a separation agreement that deals with a child, if to do so is in the best interests of that child. This is referenced earlier in the Child Support section of “What does it Contain” and applies to various other aspects of the agreement if the Judge feels that the Separation Agreement terms are contrary to the child’s best interests. 
2. You should not include unenforceable clauses for example, conditions regarding chastity and barriers to remarriage. Such clauses are prohibited by the Family Law Act and will have no enforceability in court and thus, are useless in the Agreement.

Four Important Notes Prior to Drafting a Separation Agreement 

1. It is not necessary to wait until you and your partner reach an agreement on every ongoing issue prior to creating a separation agreement. You can sign an agreement about the issues upon which you agree only and leave the unresolved issues until a future date.

2. It is recommended that both parties obtain independent legal advice prior to signing a Separation Agreement. Most professionals will ensure that a party who rejects a use of independent legal counsel, sign a waiver confirming this, to ensure the enforceability of the Agreement.
3. It is an absolute obligation that the Separation Agreement is not signed under duress by either party. The court will hold the Agreement to be entirely unenforceable in such a case, rendering the Agreement useless.
4. As mentioned earlier, it is vital to have your Agreement drafted by a professional. Quick Divorce is happy to draft your Separation Agreement at a reasonable rate. Call us at 647-952-6302 to discuss your options.