A separation agreement is a legally binding document made between a married couple who are not yet ready to file for a divorce but have decided they want to live apart from one another.
You may want to use a separation agreement if, for example, you and your spouse have decided to live apart to see if a divorce is really what you want or if you plan to separate and need to formally agree on how you will divide assets and handle child support or alimony.
How to Write a Separation Agreement
A written separation agreement should identify the following elements:
Basic information:
- Names and address(es) of the couple that wants to separate
- Date of marriage
- Date of separation
- Confirmation that the couple meets the residency requirements for their state
- Reason for the couple’s separation (legal grounds for separation vary by state and may include grounds such as irreconcilable differences, general indignities, adultery, etc)
- Whether the separation is temporary or permanent
Division of finances:
- Division of real property, including primary and vacation homes
- Division of assets, including cars, collections, antiques, furniture
- Division of financial investment accounts, including stocks and bonds
- Division of financial obligations like mortgages, loans, bills, debts, and taxes
- Division of marital property versus prior personal property
Division of shared responsibilities:
- Child custody and living arrangements (if the couple has children under the age of 18)
- Visitation schedules for the non-custodial parent
- Plans for child care (e.g., medical insurance, family involvement, school obligations, etc.)
- Child support and/or spousal support
- Division of unexpected medical, educational, or other expenses
What to Include in a Separation Agreement
When writing your separation agreement, you should include detailed financial plans such as the following:
- Arrangements regarding primary residence, including plans to sell and immediately divide proceeds, plans to sell the home after a set period of time, or plans for one spouse to assume the home, including mortgage if any, and/or buying out the other spouse
- Distribution of vacation homes, timeshares, or other real estate
- Assignment of assets and debts
- Plan for who keeps personal items and the timeframe for collecting
- Provisions for temporary financial support
Above all else, there are five critical items a separation agreement must have, as applicable, to be valid:
- Distribution of marital assets and debts
- Child support
- Child custody
- Visitation
- Spousal support
Additionally, you should consider including arrangements for potential future situations that may occur after the separation:
- What is to be done in the event of the death of either spouse
- Expectations for incorporation of a new relationship or cohabitation by either spouse
- Design for significant changes in circumstance, such as a change in income
- Conditions that allow for variations in arrangements
- Consequences for breach of the separation agreement
Tips for Writing a Separation Agreement
Additional expenses for childcare
In addition to potential expenses for private school and contributions to college funds, children often require payment for non-budgeted extracurricular activities, such as school sports, school trips, school events, private lessons, etc.
Be sure to specify who is responsible for such expenses. Alternatively, you can consider having a 50/50 arrangement or opening a joint bank account used solely for those purposes.
Omitted assets or property
Issues related to property division are generally straightforward, and your written agreement will reflect that. However, it’s best to include provisions that address the distribution of forgotten assets, including non-disclosed or omitted property. These written provisions, a 50/50 division, for example, will help you avoid having to go to court in the future.
Seek advice if necessary
Depending on your family’s needs, writing some aspects of your separation agreement can be challenging. If your agreement’s legal or tax-related consequences are complicated, be sure to seek financial advice from an accountant or legal advice from an attorney.
As you write, remember that rules regarding separation agreements differ from state to state. Be sure you are using the rules in your state and have determined how they may affect your written agreement.
Not all states have laws that recognize legal separation, i.e. you cannot petition the court to be separated legally.
The states that don’t acknowledge legal documentation of separation are Florida, Delaware, Georgia, Louisiana, Pennsylvania, Texas, and Mississippi. In those states, writing a separation agreement is still a valid means of dealing with finances, support, and child custody issues.
