The end of a marriage is never easy. Even if the marriage was bad and even if both people wanted out, it can still be difficult. And, unfortunately, in addition to feeling bad, you often have legal matters to take care of to help move your divorce along. This often starts with a separation agreement.
If you do not have experience with separation agreements, they can leave you feeling a little confused. Don’t worry, though. We’ll explain these agreements here so that you have one less thing to worry about as you move through the divorce process.
What Is A Separation Agreement?
You may be wondering what, exactly, a separation agreement is and whether or not you need to have one.
A separation agreement is, in basic terms, a contract between a husband and a wife, soon to be ex husband and wife. The contract comes into play when a legal separation has been granted to the couple or when they have decided to live apart in order to consider whether or not a divorce is right for them.
In the agreement, the couples must settle issues related to their marriage, such as who will get what property, who will be responsible for what debts, if one spouse will receive alimony, who gets child custody and/or visitation, child support amounts, and anything else that the couple may deem important. The goal is to go ahead and solve any issues, via this document, that would have popped up during the separation process or the divorce process.
It is important to understand, too, that a separation agreement is different from a divorce agreement, though the two often work together and are similar. In fact, often times, the separation agreement and its terms are used in forming the divorce agreement, which will go into effect once the divorce is finalized.
Take care not to agree to anything in the separation agreement that you wouldn’t agree to in a divorce. Doing so could be used against you when you enter into divorce proceedings. The judge may want to know why something was “okay” for you during the separation but not during the divorce.
You can change the separation agreement when it’s time to upgrade it to a divorce agreement, however. Thus, work with a lawyer to see that any desired changes are incorporated into the new agreement.
Getting Your Separation Agreement Accepted
Once you and your spouse have created your separation agreement, you bring it with you to a hearing. During this hearing, you will be asked questions, and so will your spouse. This is to ensure that both parties actually do agree to everything presented in the separation agreement. In the case where one spouse has requested something that the other spouse has not agreed to, the judge will make a decision on this matter.
However, the process is generally faster and easier for everyone involved if you and your ex can agree on everything that you put into the document.
Do You Need A Lawyer?
The big question many people have is whether or not they need a lawyer when drawing up their separation agreement. Unfortunately, there isn’t a simple, one size fits all answer to that question. Whether or not you will need one is really up to you.
With that said, the law does not require you to have an attorney to draw up a separation agreement. Thus, you CAN create a separation agreement on your own, but it’s not always recommended.
If you and your spouse agree on everything and in a fair way, then you may be able to get away with not having a lawyer. This will save you money too. Unfortunately, though, most couples cannot agree on everything, and, when that is a case, it’s a good job to have an attorney to help.
In fact, attorneys can be helpful no matter what. They know the law, they know what all a separation agreement needs to address, and they also know how to present the agreement in such a way that it is likely to be accepted the way you want. For many people who feel intimidated by the process, having a lawyer can prove helpful.
However, the choice is really yours. You and your spouse should think long and hard about whether or not you can create a separation agreement on your own or whether you should seek out a lawyer who can help you both or individual lawyers. It really just depends on your specific situation.
Make Sure Your Agreement Can Hold Up In A Court Of Law
As discussed above, you are not required to have a lawyer involved as you create your separation agreement. However, do keep in mind that you want and need your agreement to be legally recognized in court.
The good news is that it probably will be. Courts generally recognize agreements as long as they are fair to both parties and as long as they are formatted properly and follow the required guidelines.
However, your agreement may not be recognized in certain situations. For example, if a judge feels your agreement is not in the best interest of your child, it may not be recognized. Likewise, if you or your spouse fails to disclose some assets, liabilities, income, or other important matters, the agreement could be rejected. Also, if the agreement is grossly in favor of one spouse over another and is unfair to the other spouse, it may be rejected.
Thus, keep honesty and fairness in mind as you draw up your separation agreement. Also, keep in mind the basic outline and structure of these agreements since your agreement could get rejected on a technicality too.
There are plenty of online examples of separation agreements, as well as software programs that can help you to set them up properly, so there is really no excuse for not handling your separation agreement correctly.
Should You Separate?
Of course, before you can start worrying about separation agreements, you have to first consider whether or not separation is even the right choice for you and your spouse.
This is a very personal decision, but most couples find that there are some “tell-tale” signs that it’s time for them to separate.
One of the big ones is when you just don’t have any energy left. When you feel that you’ve put everything possible into your marriage and it’s just not working out and there’s nothing you can do to make it work out, it may be time to try separation.
You also should separate if there is any kind of abuse going on. In fact, divorce may be a better option in this case, though many states require you to undergo separation first. In any event, getting away from a partner who is abusive to you and/or your children is a definite must. In this case, your primary goal should be protecting yourself and your children and documenting the abuse.
You may also consider separation in instances of infidelity. While couples can and do work through infidelity in some cases, others choose to separate and eventually divorce as a result. If there has been infidelity in your marriage, separation may be a good next step to give you some space to think about what to do.
Separation can also work when people have simply “grown apart” and no longer feel like they have anything in common. Sometimes, some time apart can help people to miss one another and rekindle their relationship. Other times, it can lead them to see that divorce is the right answer.
That’s the thing that people often forget. While separation typically does precede divorce, it doesn’t always have to. In some cases, couples do get back together and have long and happy marriages. In others, they decide that divorce really is the best choice.
Regardless of what happens, it is important to make the separation legal. That way, there is documentation that it occurred, which can be useful in future divorce proceedings. Also, a documented separation can be necessary in states that require a set period of separation before a divorce can be granted.
At the end of the day, whether or not to get separated is a highly personal decision. Talking with a counselor can help you to make the right one. And, no matter what you decide, make sure you do things “by the book” legally speaking to protect yourself and document the separation appropriately.
Don’t Be Afraid To Ask For Help
No matter what you decide, remember that you can always reach out for help. Whether you need help deciding whether or not to separate or help deciding what to put in your separation agreement, there are resources available to you if you just reach out.