If you and your spouse no longer wish to live together, but you aren't sure if a divorce would be the right step to take, you can opt for a period of trial separation. After you've verbally agreed on how you'd like to resolve practical issues when you're apart, you can put it down on paper in a separation agreement.
As a personal matter, you don't have to go to court or hire an attorney to prepare a separation agreement. However, keep in mind you're entering a delicate area. Although you're allowed to draft the deal yourself, it is potentially legally binding after signing, particularly concerning the handling of assets and liabilities.
A Marital Separation Agreement is a contract spouses can create if they want to go their separate ways but remain legally married. It defines how the shared properties would be divided and who would get custody of the children. This mutual agreement also regulates how to handle the debts and bills in the future.
If the married couple has children, a Marital Separation Agreement defines custody and visitation rights and whether one parent should provide alimony or spousal support.
Executing a Marital Separation Agreement is not the same as filing for divorce. You and your spouse can still change your mind after the trial separation. Entering into a Marital Separation Agreement doesn't mean you have to choose any of the options immediately. Two married spouses can use the agreement to tackle difficult topics and decide on important issues together.
Depending on your state, a Marital Separation Agreement may also be known as:
Settlement agreement
Legal separation agreement
Marital property settlement agreement
Separation papers
Any married couple who plans to split up or is already living separately should consider drafting a Marital Separation Agreement. Since it is less stressful than an actual divorce and does not require attorneys and family courts' involvement, even couples who are about to file for divorce can benefit from entering into this agreement first.
A Marital Separation Agreement is particularly recommended in several situations. For instance, if you are unsure about the future of your marriage. Or, if you are still hoping to reconcile with your husband or wife. In such cases, you should try to find common grounds and come up with solutions to work for both, for which a Marital Separation Agreement is an excellent tool.
Depending on your state, you might be required to execute a legal separation agreement and live de facto separated for several years before you can file for divorce.
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A Marital Separation Agreement defines some delicate and essential aspects of life for both parties. The most important thing you'll need to do is talk to your spouse and arrive at a mutual agreement. Once you have all the answers, you're ready to go.
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To create your document, please provide:
Wedding Date: The date on which you got married
Separation Date: The date when one of the spouses moved out of the shared home
Children Names and Ages: Ages and names of all minor children you have together
Addresses: Current addresses of both spouses
Alimony: Payments one spouse has to pay to help support a spouse during separation
Child support: Funds one of the parents agrees to provide to the parent who has custody
Custody: The right to raise your children and make important decisions on their behalf
Marital Property: Possessions the spouses attained together during their marriage
Non-marital Property: Possessions the spouses owned before the marriage or acquired individually during the marriage
Visitation: The time the noncustodial parent gets to spend with the children
To be valid, a Marital Separation Agreement must be signed by both spouses. Also, a durable power of attorney must be notarized in some states or be witnessed by at least two adults, who should also sign the document.
It's also important to note that signing requirements vary across state lines. Some states require both witnesses and the notary public to sign the document. Also, some states don't need the agent to sign. Look up the laws in your jurisdiction before signing the Marital Separation Agreement.
Make sure to read your Marital Separation Agreement thoroughly once again before you sign it. If you're unsure about something, it might be useful to have a lawyer review the paper (but not your spouse's attorney). Both spouses should keep a copy of the agreement for records.
Courts usually take into account any Marital Separation Agreement at hand, as long as it’s just, and reasonable. In some cases, a court may refuse to recognize a Marital Separation Agreement. That usually happens if the agreement is perceived to be unfair, hidden assets are discovered, or the terms are adjudged to be against the best interests of the children.
Both of you need to sign another document that cancels the Marital Separation Agreement.
Make sure to describe the visitation schedule as clearly as possible, especially if you and your spouse have a history of poor communication and disagreements. Detail the standard visits as agreed, including holidays and school visits. The schedule should be reasonable, transparent, and leave no room for interpretation.
Sit and discuss this matter thoroughly before creating the agreement. The division of your assets and possessions depends on personal and familial circumstances. The key is to be open, fair, and disclose all possessions at the beginning.
Every US state has a child support division that can enforce the various aspects of your separation agreement. There are differences across the US, but all parents are eligible to use the services, including potential wage garnishments and criminal charges for the violators.
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