The Basics:
A legal separation is a voluntary agreement between two spouses when they decide that a divorce is likely probable. Spouses do not have to live separately from each other to enter into a separation agreement. Generally, such agreements are created and agreed upon when the spouses have decided that they may get a divorce in the future, but have yet to enter divorce proceedings. There are a number of reasons this is done. Many spouses depend on each other for medical, dental, and health benefits and do not wish to undergo divorce proceedings, as it would complicate matters for another spouse. Another reason at times is that the spouses may have children and a divorce may lead to a negative outlook for the children. For instance parents may not want children to have to attend different schools, or have a disheveled home environment due to a divorce.
A separation agreement is a legal written contract apportioning the couples marital property, spousal support (alimony), and at times child custody and support. Voluntary means that there must be full and fair disclosure by both parties in regards to all assets, debts, and intentions. This is not to get confused with a prenuptial agreement. A separation agreement is the document of choice when two spouses desire to live apart from one another but still wish to retain benefits inherent within marriage. This is often the case when the spouses have children and do not wish to undergo divorce proceedings at the current time.
When To Enter A Separation Agreement:
Parties also enter into separation agreements to resolve economic issues that they are having that may make getting the actual divorce less burdensome. Once the agreement is signed both parties it is a binding contract and helps to resolve economic factors such as spousal support, child custody, child support, debts, and even property division. The courts will enforce spousal support and other provisions in the agreement unless there was some type of evidence of unconscionably, undue influence or fraud or misrepresentation of some sort. However, if the child support is not fair a court will overturn this portion of the agreement as the state has an (often known as the best interest of the child) interest in making sure that the children are properly cared for.
Creating A Legal Separation
If the spouses do not own any martial property than a separation agreement is not really necessary. However, a separation agreement provides specific details about the pending termination of a marriage and a clearly written document can expedite the divorce process.
Lastly, if a court divorce degree indicates that a separation is merged, that means that the entire separation agreement is enforceable as a court judgment. Yet, if a court divorce decree does not indicate that the separation agreement is merged than the separation agreement is just a contract and a court will enforce it as a contract. It is important to note that this contract can be modifiable with consent of both parties. It is important to note that the separation agreement does not have to be filed with any court to be effective. If a court wishes to see the separation agreement it can simply be given to the court. If you want information on the rights and responsibilities of spouses during marriage check our post here.
