When the relationship between a married couple becomes strained, they may decide to get a trial separation before considering divorce. There can be a lot of questions to ask when separating:
- Will I be able to support myself financially?
- How will we split assets?
- How might a separation affect our children?
But one of the biggest things to consider is whether the separation will be physical or legal.
Some couples decide that only a physical separation is necessary. A couple could have a living arrangement where one spouse would physically distance themselves from the relationship by moving out of the bedroom. Or they could move out of the marital home. Physical separation is informal and can be done privately without the court’s involvement.
A legal separation is an official separation granted by the court. A couple creates a document called a separation agreement, a kind of separation letter between husband and wife. They are no longer married and not subject to marital property laws. But it does also mean they are no longer entitled to spousal benefits such as filing joint tax returns.
If you think pursuing the legal option is right for you, you might want to know what needs to be in a separation agreement. Here are the five must-have things to include:
1. The Distribution of Marital Assets:
When discussing separation with your spouse, you will have to decide how you would like to distribute your assets. In most cases, assets acquired before your marriage would remain your sole property. But assets acquired during the marriage would become part of the marital estate and be subject to your state’s property division laws:
In community property states, the court will split all marital assets 50/50. There can sometimes be instances where property can’t be divided physically, such as when there’s a family car. In this case, the court will divide the property according to its value. Whoever wants to keep the asset has to buy out their partner’s share. Or they can exchange another piece of property of equal value.
For example, if a car is worth $10,000, both parties are entitled to $5000 of the car’s value. One partner can pay the other partner $5000 for ownership of the car or transfer other property worth $5000.
There are only nine states that follow community property laws:
- New Mexico
In equitable distribution states, marital assets are divided according to what’s fair, which may not necessarily be a 50/50 split. The court will assess what is fair by considering certain factors:
- The financial circumstances and earning potential of each spouse
- The contributions of each spouse to marital assets
- The monetary value of each spouse’s separate property
- The contributions of each spouse towards the education and earning potential of the other spouse
- The spouse’s future financial needs
- Each spouse’s age and health
- The marital property’s liquidity
- Prenuptial agreements, if any
- Spousal support
A legal separation agreement allows you to discuss how the marital property will be divided with your spouse. You can have a conversation with them about the different financial and physical assets you share. For example, the marital home would be a joint asset a couple would share, and dividing the property could end multiple ways.
You and your spouse could agree to sell the home and split the profits or have only one spouse retain ownership of the property. If the house has a mortgage, the spouse who keeps the property must refinance the mortgage in their name after signing the legal separation agreement or final separation decree. They usually have a limited time to do this, but this can vary by state.
Once the court accepts the legal separation agreement, assets acquired during the separated period are considered separate property. These assets are protected if you ever decide to divorce in the future.
2. The Division of Debts
When a couple enters a marital agreement, both parties are responsible for the debts that occur during the marriage. So if you or your spouse takes out a loan or uses a credit card, the creditors can come for either of you to repay the debt.
If you’re writing up a separation agreement, make sure you discuss how you’d like to handle any existing debts with your spouse. For example, you and your spouse can agree to split debts 50/50 as a simple solution to navigating a complex financial situation. Or you two may decide to determine which debts are jointly shared and which debts are individual. You could then split payments for those accordingly.
It’s a good idea to get a lawyer specializing in family law to help deal with the financial aspects of your legal separation. It isn’t unheard of for a spouse to become unhappy with separating and misuse the joint account or refuse to pay for things such as the mortgage.
As you’re still legally married, the creditors will come after you to repay your debts if your spouse doesn’t cooperate. A lawyer can prevent this by drawing up a contract that legally binds both parties to pay their financial obligations.
3. Spousal Support
In a divorce, it’s common for a spouse to receive financial support. This kind of financial help is typically referred to as alimony, and it’s awarded to the spouse with a lower income. But in a legal separation, this spousal support is called ‘separate maintenance,’ although it follows the same rules as alimony.
Spousal support is meant to help the spouse with a lower income achieve financial independence. Separate maintenance is only a temporary arrangement and usually lasts for 1-3 years. Once that period is over, the spouse must be able to support themselves financially.
You and your spouse can discuss and agree on the amount. As long as the terms are fair and both parties agree, the court will likely accept your proposal. But ultimately, the decision lies with the judge, and they take many factors into account to help them determine an appropriate arrangement. These factors include:
- Their incomes
- Their age
- Their health conditions
- How long they’ve been married
- Their standard of living before separation
- Their individual contributions to the marriage
Once spousal support has been approved, the judge will include the details of the award in a separate maintenance decree or separate maintenance order.
4. Provisions Regarding Children
If you have children and want to legally separate, there are certain details you must consider. You will have to include additional provisions in your legal separation agreement to ensure your children are adequately cared for.
You should discuss with your spouse and figure out how you two would like to proceed with the following issues:
- Which parent will make legal decisions for the children?
- How will we make the legal decisions?
- How will we resolve disagreements about decisions?
- Which parent will the children stay with?
- Who will care for the children?
Child Custody and Visitation
When kids are involved, one of the most significant issues that need to be addressed is child custody. There are multiple options available, and both parents need to agree on how they would like to proceed:
Legal Custody – One or both parents have the power to make legal decisions for the child. For custody situations where there is only one parent with legal custody, the court will defer to that parent if there are disagreements concerning the child.
Physical Custody – One or both parents will be responsible for the daily care of the children. Usually, both parents will have joint physical custody.
Sometimes, a parent may want sole physical custody of their child. In this case, they would have to prove to the court why it’s in the child’s best interests that they stay with them. Or the two parents may both agree that their child should stay with one parent due to their circumstances.
Having sole or joint custody would determine the rights and responsibilities of a parent concerning their children.
Sole custody – When a parent has sole custody, they usually have legal and physical custody of their children. The other parent will have visitation rights, and depending on the circumstances, their visitation might be supervised. The court will grant a parent this custody arrangement if the parent pursuing this option can prove it’s in the child’s best interests.
Joint Custody – Having joint custody can have different meanings depending on the arrangement the parents have agreed to. Parents can have joint legal custody, joint physical custody, or both.
Like spousal support, a child can receive financial help from their parents in the event of a legal separation.
Regardless of a couple’s marital status, they are obligated to provide financial help to their children. During the legal separation period, if you become the custodial parent by court order, you have a right to request child support from the co-parent.
You can talk to your spouse about child support and agree on an amount and a schedule. But once again, the judge will make the final decision. They will follow the guidelines for child support relevant to your state.