A separation agreement can help you and your current spouse navigate the difficult process of separating, but without the hassle and expense of a contested divorce. Married couples who want to be separated can use this legal document to live separately and apart from each other.
While a separation agreement includes many of the same details as a divorce agreement, you and your spouse will have better flexibility in determining what works for you and your family situation.
Putting together the separation papers yourselves can save a great deal of time, frustration, and money. You can become legally separated without hiring an attorney or dealing with the court system in many situations.
Check out our Separation Agreement template ➜
What is a Separation Agreement?
A separation agreement is a legal contract between spouses to determine how they will live separately without getting a divorce. It outlines many different aspects of how the agreement will impact their lives after separation, including debts, bills, childcare, and much more.
It is a legally binding document that is governed by state contract law. This document is used during the process of seeking a court-ordered legal separation or separately as a formal contract between spouses.
Other names for a separation agreement may include:
- Separation contract
- Separation papers
- Formal separation agreement
- Legal separation form
While names may differ depending on the jurisdiction, their ultimate goal and legal effect are the same – defining a formal separation agreement both parties can live by.
Breaches of separation papers may justify a breach of contract claim when a spouse violates the agreement or fails to live up to its terms. Courts typically handle these legal disputes and may be able to enforce a separation agreement when it has been properly drafted.
If a separation agreement has been incorporated into and adopted as an order of the court then the court may enforce the agreement by a finding of contempt.
Every state handles divorce and separation proceedings differently. While some states may require a legal separation before a divorce, others do not. Certain states have specific requirements for when a separation agreement will be accepted.
Related: 4 Reasons Why Separation Before Divorce Is A Good Idea
Legal requirements in your jurisdiction may differ to make a separation agreement enforceable. To understand what your home state requires, you should check with a licensed attorney in your state or other local resources for more specific information.
Why Would You Choose To Get a Separation Agreement?
A separation agreement gives you more options than simply getting a divorce. You may not be ready for that step, or you may prefer to avoid the cost of a divorce proceeding, or you may even want to keep the possibility of reuniting with your spouse in the future.
Different types of separation are also possible with a separation agreement that may not be possible with a divorce. These can include:
- Trial Separation: Some married couples may just want a break to figure out where things stand. A trial separation allows a couple to live apart for a while to determine whether reconciliation is possible or desired. You and your spouse can set the guidelines for handling issues during the trial period so there isn’t a dispute.
- Permanent Separation: When the parties know they want to live apart permanently, they can write it into their agreement to reflect this. You may not desire a legal divorce for many reasons, so a permanent separation document can give you this flexibility.
- Legal Separation: Certain states have a legal separation option that—while different than a divorce—is legally recognized through the courts. This arrangement includes the division of assets, child custody, and child support negotiations.
Related: Avoiding Court Battles with a Mutual Consent Divorce
What makes a separation agreement legal?
What makes a separation agreement legal is the signatures of the spouses in the document as well as its notarization. Having the agreement notarized is nearly always required to make the agreement legal. Other requirements may exist depending on where you live and your state’s laws.
Also, you should keep in mind that some states do not actually recognize legal separation, even though they may acknowledge separation agreements contractually.
You should speak with a lawyer to find out your state’s stance on the legality of separation agreements and their enforceability.
What’s the Difference Between a Separation Agreement and a Divorce Agreement?
A divorce agreement is a written document that outlines all of the agreements between the two spouses about how to divide their property, assets, debts, and more during a divorce. Once approved by the court, the divorce agreement is an enforceable document used in advance of a formal divorce.
A divorce contract can benefit spouses who want to get divorced but wish to avoid the emotionally difficult and expensive contested divorce process.
Related: What Is A Divorce Agreement? All You Need To Know
Unlike a divorce agreement, a separation agreement leaves the marriage legally intact. While the parties can address many of the same issues found in a divorce agreement, they will not end their marriage by entering into a separation agreement.
Are a separation agreement and a separation settlement the same thing?
No, a separation agreement and a separation settlement are not the same things. While they are closely related, these two documents do have some important distinctions. A separation agreement is often incorporated into a settlement agreement in the event of an eventual divorce.
In some situations, the separation agreement can be used as a temporary agreement between the two spouses. While separated, they work out the final terms of their separation which will be put into a settlement agreement.
When is a Separation Agreement Needed?
A separation agreement is needed when you do not want to get divorced, but want or need to live separately from your spouse. Many situations may warrant the use of this kind of contract:
- Problems with the marriage exist, but you may wish to reconcile later
- You want to live apart but avoid the cost of a divorce
- A divorce is not a good option because of your financial or living situation
- You have children together and do not want to formally end your marriage
- Your personal or religious views make divorce an untenable option
- You want to know exactly how responsibilities in your separated life will be shared
These reasons and countless others may make a separation agreement the right choice for you. Any time you want to live apart from your spouse—but do not want to divorce—a separation agreement may be just what you need.
What happens if I don’t have one?
A separation agreement is not always required, so there aren’t any major concerns if you don’t have one. Some courts may require a separation agreement if you have children together but wish to live apart.
If you are pursuing a legal separation, child custody, child support, and other aspects of separated life may need to be properly discussed and included in an agreement for a court to be satisfied.
What Are the Benefits of Having a Separation Agreement?
A separation agreement can be beneficial for many reasons, including, but not limited to:
- Formally and legally binding the parties to their agreements
- Setting expectations and requirements of both spouses
- Giving you the flexibility to determine how your lives will work while separated
- Not being a permanent decision and can be reversed
- Can save money in legal fees compared to a contested divorce
What is Included in a Separation Agreement?
A separation agreement can include nearly any term you and your spouse want it to have. What you should include in any separation agreement includes:
- Names and addresses
- Date of marriage
- Confirmation of residency requirements in the couples’ home state
- Reason(s) for the separation
- Whether it is temporary or permanent
Division of Responsibilities:
- Child custody and visitation rights
- Any child support or spousal support
- Equitable distribution of assets (i.e., home, cars, furniture, etc.)
- Division of financial obligations and debts
When writing your separation agreement, you should check if there are any state-specific provisions that you must include in the document. For example, you may have to ensure there’s certain contractual or legal language mentioned in the agreement.
The agreement should also include notarized signatures for both parties and include as much information as possible—otherwise, it may not be considered legally binding and enforceable if there is a dispute.
Do I need a lawyer to help create a separation agreement?
You do not need a lawyer to create your own agreement in most situations. Our free separation agreement template can help you create your own. A lawyer may be useful in ensuring the agreement complies with your state’s requirements.
How Do You File for Separation?
You can file for separation in multiple ways, depending on your needs and possibly the requirements of your home state. After creating a separation agreement using our free template or form builder, you can file a petition for legal separation to the court, along with other required documents such as service papers, financial affidavits, waivers, etc.
Related: Affidavit: What is it and What is it Used For?
You would then include the separation agreement in the final order/decree. If you are unsure about the full process, you should find a licensed attorney to assist you.
What makes a separation agreement invalid?
A separation agreement can be invalidated by evidence of fraud, duress, coercion, mistake, withholding information, and unconscionability. Otherwise, if the court believes that the agreement is fair it will likely be upheld in court if challenged.
Does it have to be filed anywhere?
No. A separation agreement does not have to be filed anywhere; however, you can incorporate it into a legal separation order when filing for separation through the court.
Where To Get a Free Separation Agreement
When you are ready to separate from your spouse, you can use our free separation agreement template to help you get started.
Alternatively, our separation agreement form builder can help you create a customized plan.