A separation agreement is a written contract between two married spouses who want to live apart.
It outlines the couple’s concerns about handling their property, assets, debts, and bills while separated. The document details the settlement of important matters, including spousal support, custody, and support for minor children (if any).
The document can be adopted as part of Divorce proceedings if its terms do not violate any State or Federal 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 separation agreement 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:
- 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
- Separated: 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 a Separation 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 how long the life insurance policy will be and the amount in the 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.
In this section, you should provide information regarding the following:
- 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.
- 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.
- You can include provisions in the agreement that states one or both parties will provide tuition expenses for school and/or college for any of your children.
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 between them.
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 the description of the cars, so there’s no 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.
Examples of such plans include Individual Retirement Plans (IRAs), 401(k)s, and profit-sharing 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
You can throw in any additional provisions you might want to include in the agreement in this section. 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, date the separation agreement.
What Should Be Included in a Separation Agreement?
A written separation agreement should identify the following elements: When writing your separation agreement, you should include detailed financial plans such as the following: Above all else, there are five critical items a separation agreement must-have, as applicable, to be valid: Additionally, it would be best if you considered including arrangements for potential future situations that may occur after the separation:
Division of finances:
Division of shared responsibilities:
A written separation agreement should identify the following elements:
When writing your separation agreement, you should include detailed financial plans such as the following:
Above all else, there are five critical items a separation agreement must-have, as applicable, to be valid:
Additionally, it would be best if you considered including arrangements for potential future situations that may occur after the separation:
Tips for Writing a Separation Agreement
Additional expenses for childcare
As you write your separation agreement, consider additional expenses you may incur for child care.
In addition to potential costs 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.
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.
For example, a 50/50 division will help you avoid going to court.
Seek advice if necessary.
Writing some aspects of your separation agreement can be challenging, depending on your family’s needs. If your agreement’s legal or tax-related consequences are complicated, seek financial advice from an accountant or 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.
Writing a separation agreement is still a valid means of dealing with those states’ finances, support, and child custody issues.
Sample Separation Agreement Sample
Below is a sample separation agreement available for download in PDF or Word doc format.
Frequently Asked Questions
Can you get a divorce without a separation agreement?
Yes, you can get a divorce in most states without a separation agreement. However, each state handles separation proceedings differently. Some states require a legal separation before a couple can file for divorce, while others do not.
State Law determines whether a separation agreement is signed by the couple or filed with the state. Check your state court or government website for more specific information about the separation process.
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 separation agreements in the state where you live, you can still use the document as part of a formal lawsuit when you want to file for legal separation with the court.
Most of these forms are free on the state or county court websites.
Does a separation agreement need 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 write your own separation agreement?
You can write your separation agreement or have an attorney draft it depending on your needs.
Discuss how you and your spouse will divide physical assets and responsibilities using our separation agreement template as a guide.
Most couples won’t agree on every aspect of the agreement immediately, so prepare for this process to take some time.
If needed, you and your spouse can complete two separate versions and then come together to discuss and negotiate.