Written by Avvo Staff | Jun 3, 2015

Legal separation agreements 101

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What is legal separation?

A legal separation is a relationship status, defined by law, which carries definitive rights and obligations. In states that recognize legal separation, which is most of them, this status usually follows a finding that either the marriage is irretrievably broken, or the parties have mutually agreed to live separate and apart from one another.

The rights and obligations of a legal separation are set out by a separation agreement that is agreed to by both parties. Couples who are legally separated are officially classified as such by court order, much in the same way as couples who are divorced or married.

Legal separation is not available in Delaware, Hawaii, Iowa, North Dakota, Rhode Island, South Dakota, Texas, Vermont, or Wyoming. But valid separation agreements created in the states that do allow legal separation are recognized as binding by these states.

Why choose a legal separation instead of divorce?

Religious, personal, or cultural beliefs

The reasons for pursuing a legal separation instead of an outright divorce are varied, but often have to do with religious convictions, personal reservations, or perceived cultural stigma surrounding divorce.

Financial reasons for separation

Legal separation may also make financial sense given certain goals, such as:

  • Qualifying for spousal Social Security or military benefits – the former of which will require proof of at least 10 years of marriage;
  • Retaining spousal health insurance benefits, though this may vary by state and employer; or
  • Possibly receiving tax incentives by filing jointly, or maintaining the marriage relationship in order to qualify for the marital deduction upon the death of the first spouse – an important estate planning consideration.

What is a legal separation agreement?

If you have decided to pursue a legal separation, a separation agreement is the most important thing to consider. A separation agreement is the binding contract that sets forth the expectations, obligations, and responsibilities of each party during the separation. If your state recognizes legal separation, the agreement will become part of the eventual court order. If not, this agreement will be considered an enforceable contract in all 50 states in the event of conflict.

A separation agreement will include decisions on division of assets and debts, alimony (also called spousal support or marital support), child custody and visitation, child support, and any other applicable matters.

Any decisions about division of assets are final, and custody decisions can only be modified with further costly court proceedings, so it’s wise to get legal help when preparing this document. Have an experienced divorce or separation attorney prepare the separation agreement form or fill out the separation agreement template for you, or, at the very least, make sure to have an attorney review the forms once you’ve completed them to the best of your ability.

Separation agreement checklist

Your separation agreement should include all of the following points:

  • Identification of the parties, including the date of marriage;
  • A date of official separation – this is extremely important in the event of a subsequent divorce, primarily regarding the valuation of marital versus non-marital property;
  • A short statement that the marriage has become irretrievably broken;
  • An acknowledgement that the parties have agreed to live separately from one another;
  • A short statement that the agreement matches both spouses’ intentions;
  • A short statement that both parties have fully disclosed all material information necessary to execute and enforce the agreement;
  • Whether alimony will be paid, and how much;
  • Division of property, assets, and debts;
  • A child custody and visitation agreement; and
  • A child support arrangement, which must be equal to or more than what the child would receive under state guidelines.

Both parties must sign the separation agreement in the presence of a notary or witness. Afterward, the court will include the agreement by incorporation into the legal separation decree.

Legal separation and children

If you have minor children, your separation agreement must address the plan for their future care, as well as their living arrangements and visitation with the other parent. The court system will generally allow parties to create their own workable child custody and visitation arrangement, so long as it adequately and thoroughly addresses the child’s best interests. An arrangement in which a child is constantly shuttled back and forth, or rarely sees one parent, could be considered unenforceable by the court. In such a case, the court would order the parties to submit a new arrangement that adequately accounts for these concerns.

Child support must also be addressed in a valid separation agreement, and it must comply with the current child support guidelines established in your state. Separating parents are free to agree to a higher amount of support than that required under state guidelines, but cannot agree to accept or pay less than the child would have received following a divorce in that state.

Property division and spousal support

Unlike separation terms related to minor children, the court will leave division of assets and spousal support to the parties as long as their agreement addresses these issues to the satisfaction of the court.

Separating spouses may choose a number of ways to divide assets and debts, from the status quo to an all-out liquidation of major marital assets. The best way to divide assets and debts will depend on the needs and financial capability of each spouse after separation, and will be unique to each couple.

Likewise, the parties may agree to a spousal support arrangement that best meets their needs – from waiving support entirely to agreeing on a sizable monthly payment from one spouse to the other. Regardless of the parties’ decision, the final agreement will be enforceable and may be difficult to modify, so it is very important to choose the terms carefully.

Turning a legal separation into a divorce

While some states – such as Delaware, Virginia, and North Carolina – actually require separation prior to divorce, others do not. However, a carefully planned separation with a thorough agreement can help alleviate some of the stress in the event that a divorce becomes necessary – for instance, if one or both parties would like to remarry. The court can re-incorporate the separation agreement into the final divorce decree, reclassifying it as a divorce settlement agreement, provided it addresses all aspects of the marital dissolution process.

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