A couple considering divorce can file a separation agreement. Here is everything you need to know about a separation agreement in divorce.
A separation agreement in divorce allows couples to write down their plans regarding the division and care of their children and property following the divorce. These agreements are individualized to each couple, and should be looked over to ensure that both spouses are happy with everything written down. These agreements should never be filed with the courts until an attorney has a chance to look them over, but couples should begin to work on them before meeting with an attorney if possible.
What Is a Separation Agreement in Divorce?
A separation agreement in divorce is an agreement that states how matters relating to the end of the marriage will be handled. This agreement should discuss child custody, parenting time/visits, division of assets, who will live in the marital home, dividing debts, taking back the names each spouse had prior to marriage, etc. A separation agreement is only good if both spouses sign it, so it is crucial that both spouses agree on everything put into the agreement and that both spouses are happy with its result. It is usually made part of the divorce judgment.
Related: Marital Settlement Agreement vs. Divorce Decree
If one spouse does not want to sign the separation agreement, they cannot be forced. Anyone being pressured to sign a document they do not want to should walk away and get their attorney involved. The judge at the divorce hearing can also refuse to accept any agreement if they believe it is unfair under the circumstances, that one spouse did not have the opportunity to talk to a lawyer, or a spouse signed due to intimidation or duress.
Do It Yourself (DIY) Separation Agreement
While it is not recommended for couples to write and file their own separation agreements without consulting with a lawyer, there is no harm in couples writing up a draft of what they expect the agreement to look like. There are certain steps that must be followed when making a separation agreement in order for it to be good in the eyes of the court.
Coming to An Agreement on All Issues
The separation procedure revolves around several issues that spouses must agree to before divorcing. These issues include custody and support of children, parenting time/visitation, division of assets, alimony, division of personal and real property, who gets to live in the marital home, division of debts, taking back the name each spouse had before marriage, and possibly an order of protection from abuse. Once all of these issues have been talked about and worked out, the couple can move on to the next step in creating their separation agreement.
Related: 5 Things to Consider in a Divorce Agreement
Locating the Separation Agreement Form
The statutory and local courts provide the agreement forms, however, the arrangements are also downloadable. Spouses can obtain and combine 3 to 4 forms to create their ideal separation agreement. Couples must complete and print these forms to produce written documents.
Filling in the Separation Agreement Form
Once the forms have been downloaded, the couple should begin to fill in the form in simple English with high precision. All necessary details should be carefully looked over and made sure to be exactly as agreed. Couples who come up with their plans together must type their ideas separately and attach them to the agreement. These personalized lists are also subject to separate typing and attachment to the main agreement form.
Additional Information
The couple is at liberty to add whatever other additional information they think is necessary to the agreement. This allows couples to give comprehensive details about their agreement in order to prevent future misunderstandings.
Create Signature Block and Include Space for a Notary Signature
It is important to reiterate that these documents should not be signed until an attorney has looked everything over and confirmed that they are filled out correctly and thoroughly.
Once everything is completed and an attorney has looked over the documents, the couple should create spaces for them to sign to validate the agreement. Underneath these spaces for signatures should be typewritten names of the spouses for validation. The form should also have space at the end for a notary signature to provide security of the form.
Can I write up my own separation agreement?
If a couple is considering having a separation agreement, it is best to consult an attorney. Some issues that are usually addressed in the agreement involve far-reaching implications, like tax consequences. While couples can definitely draft them on their own, or discuss what they think they want to include in their own agreement, writing it without an attorney is not the best idea as the writing is fairly technical.
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