A separation agreement, also called a marital separation agreement, is a binding contract between a husband and wife that settles all issues which arise when a couple legally separates or decides to live apart. These issues usually include property and debt division, insurance coverage, child custody, child support, and alimony, but can cover any number of life details that are important to one or both spouses.

Facts about separation agreements

A separation agreement puts in writing the decisions a couple agrees to in their separation or divorce negotiations. If an agreement can't be reached, the court divides the couple's assets and liabilities and makes, in the best interests of the children, decisions regarding child custody and child support.

Generally, a separation agreement is presented at the hearing that establishes the legal separation. A judge reviews the document to make sure it represents the interests of both the husband and wife and was not created under duress. The separation agreement must be signed by both husband and wife and notarized. Note that although a separation agreement is a binding contract, it does not necessarily mean that you must get a divorce.

Considerations when negotiating a separation agreement

When negotiating a separation agreement, think about your wishes as well as those of your spouse. If you work together and are fair and open with each other, you'll be more apt to reach mutually beneficial decisions. This is critical since conditions set forth in a separation agreement are legally binding during the time leading up to a divorce, and may last forever if incorporated into the final divorce agreement.

If you draft a separation agreement

You don't need a lawyer to draft a separation agreement, but it's often advised. Emotions run high when a husband and wife divide up their life. It's hard to stay objective. Plus, since separation agreements comprise a wide range of issues, it's not uncommon to overlook some important aspects, such as pension payments or death benefits. In addition, laws regarding what is permissible in separation agreements differ from state to state. (For example, some states exclude child custody issues.) A lawyer experienced in divorce law may make the process easier, less stressful, and more beneficial for both parties.

Additional resources:

Divorce Support: in-depth Q&A

North Carolina Divorce: Article