A separation agreement is a legally binding document created by spouses planning to live apart but remain legally married. It outlines the terms regarding the division of assets, debts, alimony, child support, custody arrangements, and other relevant matters.
This agreement clarifies and legally enforces each spouse’s responsibilities and rights during separation. It avoids misunderstandings and conflicts by specifying how various issues must be handled while the couple is separated and potentially before a formal divorce.
The document can be adopted as part of divorce proceedings if its terms do not violate any laws.
What is a Separation Agreement?
A separation agreement is a legally binding document between a married couple who are not yet ready to file for a divorce but have decided they want to live apart. Some states require you to go through the court for the document to become legally binding.
Separation papers signed by both spouses include financial disclosures and address issues such as child custody, spousal support, and living arrangements.
The couple is still legally married and can benefit from specific insurance and tax benefits.
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 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
Step 1 – Enter Parties & Marriage Information
You must first begin filling out the separation agreement by including the information of both the petitioner and the respondent. The petitioner is the individual filing for separation.
The details that both parties should consist of are the following:
- Name
- Address
- Former Name (optional)
- If either party wants to return to using their former/maiden name, they can request this in the document.
- Marriage date
- Location of marriage
- Current Status
- Refers to whether the parties are currently separated but living apart or divorced.
- Divorced: A Separation Agreement can be adopted as part of Divorce proceedings if its terms do not violate any State or Federal laws. Parties may also enter an agreement to modify an existing court-mandated Marital Settlement Agreement. In either case, the details of the current divorce proceedings are recommended to be referenced or attached.
Step 2: Provide Information about Spousal Support
If you and your spouse agree to spousal support, specify which party will receive it, how much they will receive, and when payments will begin.
You should also indicate whether parties can modify the amount and whether there is an end date or an event that will trigger its termination.
If one spouse must pay spousal support, it is common practice for the supporting spouse to carry a life insurance policy to guarantee payments if they die. The receiving spouse would be named the beneficiary, and the supportive spouse generally must maintain the insurance policy as long as spousal payments are required.
In this section, you can specify the length and amount of the life insurance policy.
Step 3: Add Information about Children
You should detail your situation with children if you have any or are expecting. You must include their names and birthdays. Note the number of children you’re expecting if relevant.
When separating, you must decide on the custody arrangement for your kids. You will have the following options:
- Sole legal and physical custody
- Shared legal custody and primary physical custody
- Shared legal and physical custody
If there is an existing court order regarding child custody, you should include its details, such as Proceedings, Date, Stage/Judgement, and Court filed in your separation agreement.
Children Expenses
In this section, you should provide information regarding the following:
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Medical insurance
- Decide which party will be responsible for your children’s medical insurance and who will be responsible for expenses not covered by the insurance policy.
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Child Support
- You can include terms about child support in the separation agreement. Specify who will pay child support, the monthly amount, and when the payments begin.
- If the child support amount doesn’t follow the guidelines set by the court, you will have to explain how you determined your amount.
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Tuition expenses
- You can include provisions in the agreement that state one or both parties will provide tuition expenses for school and/or college for any of your children.
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Special rights and responsibilities
- Special rights and responsibilities are agreements between the parents regarding the care of the child(ren) and any actions to be taken (or not to be taken) while the child(ren) is in the care of the other party.
- If one parent has sole legal and physical custody and the other does not have visitation rights, this is unnecessary.
Step 4 – Decide on Property
When separating, you will have to agree on how to distribute your real property, if there is any. In the case of a married couple, it is typically the marital home. Parties can agree that:
- One party will keep the marital home and be the sole owner
- They will sell or lease the home and split the profits
- They will continue to own the home jointly, and one party will continue to reside there
If the married couple shares other properties, note their address and specify who will take ownership of the property after separation. Alternatively, both parties can agree to sell it instead.
The following kind of property is personal property. Personal property is the assets and belongings of the parties that are movable, as opposed to real property (land, house, structure, real estate), which is fixed.
Both parties should agree on who should own particular items, what items should be sold, and how they will split the profits.
You should also provide a monetary value for the items so it’s easy to break assets later.
You should also discuss the distribution of any vehicles with your spouse and include a description of the cars to avoid confusion in the agreement.
Step 5 – Get Your Financials In Order
If you and your spouse have a joint banking account, you must provide the account details and decide how it will be split.
Similarly, joint debts can be split or be the sole responsibility of a party, depending on what you and your spouse agree to.
For pensions and retirement accounts, spouses may also be entitled to a portion of the other spouse’s pension and/or retirement plans, which are accounts created or opened in the present to replace income upon retirement. If a spouse paid money into the account while married, it might be considered part of the marital estate.
Individual Retirement Plans (IRAs), 401(k)s, and profit-sharing plans are examples of such plans.
Decide if any interest from the pensions or retirement accounts will be awarded to a spouse or split evenly, including the relevant account details.
Finally, decide when you and your spouse will start filing individual tax returns. It could be at the beginning of a particular year or when the divorce decree becomes final. Then, specify who will be responsible for any prior joint tax return deficiencies.
Step 6 – Add in Final Details
In this section, you can include any additional provisions you might want to include in the agreement. You can also add witness signatures and notary acknowledgments and specify whether the agreement will be filed in court.
You don’t need to file your agreement with the court for your separation to be effective. However, the parties can file their separation agreement with the court, especially in states requiring a separation period before a divorce. Filing the agreement can establish the time frame of separation.
If you have filed your agreement and later filed for divorce, you can ask the court to merge the agreement into the final divorce decree, which becomes enforceable by the court.
If you do not file the agreement with the court and/or merge it into your final divorce decree, it is like any other legal agreement between you and the other party and enforceable in the same ways.
A separation agreement filed with the court is generally called a Marital Settlement Agreement.
Lastly, the document should be dated.
What Should Be Included in a Separation Agreement?
A written separation agreement should identify the following elements: A fair division of assets must consider any pre- or postnuptial agreement. Both prenups and postnups can be enforceable in the case of legal separation, provided they meet specific legal criteria and can significantly influence the terms of the separation agreement. Additionally, it would be best if you considered including arrangements for potential future situations that may occur after the separation:
Basic information:
Division of finances:
Division of shared responsibilities:
How To File for Separation
Step 1 – Check Your State’s Requirements for Separation
Your first step is to research the legal requirements in your residential state, as different states have different laws. For example, how long you have lived in your state may affect whether you can file there. Also, some states require that you provide grounds for why you want to separate, which can be any of the following:
- Adultery
- Imprisonment
- Consanguinity (finding out you and your spouse are related after marriage)
- Bigamy
- Unsound Mind
- Neglect
- Desertion
- Domestic violence
- Fraud
- Impotence
- Physical incapacity
- Sexually transmitted disease
- Unreasonable behavior
Some states may not accept some of the reasons mentioned above, so check your state laws to see which grounds apply to your circumstances.
For example, California is a “no-fault” state for divorces, legal separations, and annulments. In other words, you wouldn’t have to prove grounds for ending the marriage, and there doesn’t need to be a period of living separately and apart before filing for divorce.
Step 2 – Draft a Separation Agreement
You can get a lawyer to help you draft the separation agreement or write it yourself using our free template. The document must include the necessary information for it to be valid.
Your separation agreement should also cover the division of finances and assets, such as:
- Real estate (primary and vacation homes)
- Marital property (family cars, collections, antiques, etc.)
- Investments (stock options, exchange-traded funds, mutual funds, etc.)
- Mortgages, loans, bills, debts, and taxes
Remember that each situation is different. You or your spouse/partner may decide not to pay alimony or spousal support because you’re still legally married. For some situations, you may prefer to keep joint accounts, such as a joint checking account for shared bills.
And lastly, your agreement should also be explicit on shared responsibilities if you have children:
- Child custody and living arrangements
- Visitation schedules
- Child-care plans (such as health insurance and school obligations)
- Child support
Step 3 – File a Petition for Legal Separation
The prepared separation agreement needs to be filed with the appropriate local court. In some states, this is the family court or domestic relations court. The court clerk can provide information about what forms must be completed and any other requirements.
You can hire an attorney to file the petition for you or do it yourself by going to the court clerk in your county.
You will need to pay a filing fee. For example, in Washington State, a legal separation can cost up to $450; in New York, it’s #210; and in Nebraska, you’ll pay $161 to file for dissolution.
Step 4 – Serve Your Spouse the Legal Separation Papers
If you and your spouse file jointly in a no-fault divorce state, you can complete the information and present it to the court. This counts as “service of process”. You do not need to notify your spouse of the separation.
However, if you file separately, you must serve your spouse with the separation papers once you have filed your own.
You should avoid personally delivering the separation papers. Many courts require you to use licensed, professional process servers. Other jurisdictions allow service by certified mail or other means that require a signature confirmation.
Step 5 – Come to an Agreement on Issues
You and your spouse’s willingness to agree on issues will help make your legal separation easy and amicable. Agreeing on issues will likely lead to the court approving your petition to be legally separated.
When your spouse is willing to discuss terms amicably, there can be more benefits:
- Lower costs than going to court
- Flexibility to negotiate issues and come to solutions
- Reducing court involvement, which can be time-consuming
However, there may be instances when you and your spouse disagree on issues. For example, if you file a petition for legal separation, your spouse could file a counter-petition. You would be asking for separation but with different terms involving children, property division, finances, and other aspects of your lives.
This situation can lead to mediation or a judge making a decision for you as a last resort, binding you to that decision.
Step 6 – Court Review and Approval
Once the separation agreement is filed and served, a judge must review the terms to ensure they are fair and compliant with state laws. If children are involved, the court will pay particular attention to the custody and support arrangements to ensure they are in the children’s best interests.
The court will likely approve your separation unless the document has questionable terms. After approval, the court will issue a decree of legal separation, which legally acknowledges that you and your spouse are separated and defines the rights and responsibilities of each party during the separation.
Future Modifications
If circumstances change, either party can request modifications to the separation agreement by petitioning the court.
Separation Agreement Sample
Frequently Asked Questions
Can I file a separation agreement without a lawyer?
Yes, you can file a separation agreement without a lawyer. Even if the court doesn’t require the document in the state where you live, you can still use it as part of a formal lawsuit when you want to file for legal separation from the court.
Most of these forms are free on the state or county court websites.
Can a separation agreement be notarized?
Yes, a separation agreement must be notarized and contain the signatures of both parties to be considered legally binding. Any notary public can perform this function for you.
Note that both spouses do not have to show up simultaneously to sign before a notary. Each spouse can sign in front of separate notaries.
Can you make your own separation agreement?
You can create your separation agreement without legal counsel, but a mediator would help if you have issues agreeing with your spouse.
Most couples won’t agree on every aspect immediately, so preparing for this process takes some time.
If needed, you and your spouse can complete two separate versions and then come together to discuss and negotiate.
