Table of Contents
- The Basics: What is a Separation Agreement?
- When a Separation Agreement is Needed
- The Consequences of Not Using a Separation Agreement
- What Should be Included in a Simple Separation Agreement
1. The Basics: What is a Separation Agreement?
A Separation Agreement is a written contract between two spouses who are married but want to live apart. The agreement outlines the couple’s practical concerns about how their property, assets, debts, and bills should be handled while they are separated.
If children are involved, the agreement helps clarify details about who should have custody, how frequently the other parent can visit, and whether child support is required. Similarly, if one spouse puts their career on pause to raise children, the Separation Agreement could address whether one person should receive spousal support or alimony.
Each state handles divorce proceedings differently.
Generally, a state can either:
- REQUIRE a legal separation before filing for divorce
- RECOGNIZE a legal separation but not require one
- NEITHER require nor recognize legal separation
Unless you live in a community property state (AZ, CA, ID, LA, NV, AZ, NM, TX, WA, WI), the court does NOT grant a Separation Agreement. Instead, the couple negotiates amongst themselves the details of their separation and memorializes that agreement in a document. If a legal separation ends in divorce, you can ask the judge to include some or all of your Separation Agreement into the final divorce judgement or divorce decree.
While a state may require legal separation, no state requires you execute a separation agreement. Nonetheless, an agreement can help you confirm the tax, legal, and financial details of your separation.
A Separation Agreement will identify the following basic elements:
- Parties: list the name of the two spouses who are married but want to live apart
- Date of Marriage: when the couple was originally lawfully married
- Residency Requirement: confirm that the couple has lived in the state and particular county for the required amount of time to establish residency for legal purposes
- Temporary or Permanent: decide whether the Separation Agreement will continue to be valid if the parties follow through with a divorce (permanent) or whether a new agreement will be created if
- Children: if minor children under the age of 18 years old are involved, discuss who has custody, how much child support will be provided, and how often can the other parent visit
- Assets: who will stay in the marital home and how will shared property like cars and furniture be divided
- Debts: how will taxes, mortgages, loans, or bills be handled while living apart
- Spousal Support: ask yourselves whether one person should receive financial support given their occupation, age, and health
- Notarized Signatures: in order for the agreement to be legally enforceable, both spouses MUST sign the agreement in the presence of a notary public, not necessarily at the same time or with the same notary
The couple may wish to file the Separation Agreement with their County Clerk’s Office where either person lives. In New York, for example, the filing fee is $5.00. Since some states require a period of separation, filing the Separation Agreement starts the clock to begin the process of finalizing a divorce. For example, one year AFTER signing and notarizing the Separation Agreement, the couple may convert their separation into a no fault divorce. Check your local county clerk’s office for more details on the divorce process.
As a reference, a Separation Agreement is known by other names, depending on each state:
- Judicial Separation
- Legal Separation Agreement
- Marriage Separation Agreement
Separation Agreement PDF Sample
The sample separation agreement below details an agreement between the petitioner, ‘Barbara A Lewis’ and the respondent, ‘Juan B Johnson.’ Barbara A Lewis and Juan B Johnson agree on their intentions toward property and financial matters after their split.Separation Agreement
2. When a Separation Agreement is Needed
Why do I need a separation agreement?
If you and your partner have come to a mutual agreement on how to dissolve the “business” aspects of marriage, a separation agreement allows you both to memorialize the details in an enforceable legal document. Alternatively, if you are considering a divorce but would like to try living apart first, a separation agreement can help you both walk through all the practical and emotional considerations of what life would be like apart instead of together.
Here are a few examples of when a couple might use a separation agreement:
- Emotional Reasons
- To emotionally prepare for a possible divorce
- To demonstrate a willingness to cooperate and take care of each other
- To begin the process of trying to reconcile while living apart
- To comply with religious laws and obligations
- Financial Reasons
- To begin discussing or finalize how property and finances will be managed
- To deduct payments for spousal support on your tax return during separation
- To maintain the financial benefits of being married like medical insurance, filing taxes jointly, and government benefits like social security
- Practical Reasons
- To help facilitate discussion how custody of children and visitation rights be handled
- To prepare for a meeting with a divorce attorney
According to this Forbes article, there are some possible benefits of a legal separation instead of a divorce:
- Tax benefits of filing jointly and preserving the marital deduction for estate planning purposes
- Military benefits like spousal support, retirement pay, health care, and legal assistance
- Lifestyle maintained by pooling financial resources
The military does not recognize legal separation — you are either married or divorced. If you have not finalized a divorce, you are considered married. If either of you are military personnel, consult this Separation Agreement Survival Guide for Soldiers and Spouses for questions related to an Advance Return of Dependents (AROD), where the military pays for a civilian spouse stationed abroad to move back to the states due to marital difficulties. You do not need a separation agreement for an AROD — a letter from a professional like a counselor or priest confirming the couple’s difficulties is sufficient. The local military Legal Assistance Department in Hawaii has similarly compiled resources on Divorce and Separation.
What is the difference between a separation and a divorce?
While a divorce always involves legal separation, legal separation does not always end in divorce. In some instances, a period of separation may actually help a couple reconcile and continue their marriage. Perhaps distance does make the heart grow fonder.
Resources like The Gottman Institute, Mort Fertel’s Marriage Fitness System, and Suzanne Alexander’s Marriage Transformation have contributed to the body of knowledge on marriage education and have helped couples reconcile and/or learn how to create a stronger marriage, even during a period of separation.
You should NOT use a Separation Agreement if you do not know where your spouse is located or if your spouse refuses to agree. Instead, a Separation Agreement is best used when both spouses have come to a mutual understanding of how they would like to handle the “business” of living apart. Both spouses must both VOLUNTARILY sign the agreement.
What does it mean to live separate and apart?
State laws favor marriages as a stable building block of their communities. For those who have gone through a divorce, the emotional and financial stress caused on the couple and any children involved can be traumatic on the family and everyone involved.
Accordingly, many states often require the couple “live separate and apart” for a specific period of time before they can begin the process of filing for a divorce. Others states impose an additional “waiting” requirement after the first divorce documents are filed.
If you live in Arizona, Arkansas, or Louisiana and opted into a covenant marriage, you probably agreed to marital counseling and limited ground of divorce so proceed accordingly.
Even though you both may be living in the same home, you are “separated” if you no longer present yourselves to the world as a married couple.
- Attending different activities
- Eating meals independent of the other person
- Dividing financial responsibilities and assets
- No longer engaging in sexual activity with one another
- Household responsibilities like paying the bills are separated
- Not communicating with one another on a regular basis
If you are living in the same household but sleeping in separate beds, spousal support or alimony is not tax deductible according to the IRS publication on alimony. For tax purposes, the IRS uses each state law to determine whether you are married or unmarried and meet the definition of a “decree of separate maintenance”.
3. The Consequences of Not Using a Separation Agreement
What happens if we do not use a separation agreement?
Without a Separation Agreement, one spouse may still be responsible for another spouse’s spending habits on their joint credit card. Similarly, shared marital assets and property may be mismanaged or depleted if the couple does not originally think through how everything should be fairly divided between them.
Instead of simply parting ways, a separation agreement could prevent costly litigation by creating a space for the couple to proactively walk through the nitty gritty details of how federal and state taxes should be handled or who should pick up their child from school. If getting married was a conscious and thoughtful decision, getting separated should similarly be approached with careful deliberations.
4. What Should be Included in a Simple Separation Agreement
A simple Separation Agreement should generally address the following:
- Who gets to keep the children and claim the “child tax credit” or stay in the marital home and pay the property taxes or home mortgage
- What property and debts will be divided between the couple
- Where a future divorce will take place (i.e. state laws based on residency requirements)
- When the couple originally got married and when they began living separate and apart
- Why the couple is separating, such as an inability to reconcile differences
- Whether the separation agreement will continue in effect after divorce is finalized
- How a spouse, child, or even pet may be supported during the separation
If complicated real estate, pension, child custody, or tax questions are involved, be sure to consult an attorney or accountant to clarify any tax or legal consequences of your Separation Agreement.