Marriage Separation Agreement

A marriage separation agreement is a legally binding contract between spouses who have decided to separate or get a divorce. The separation agreement manages the division of marital property and finances, child custody, visiting arrangements, debts, and alimony.

With a marriage separation agreement, a couple remains married even if they divide their property and stop living together. If there are troubles in the marriage, the agreement can be a good way to cool off for both parties and fix the relationship. If it’s not the case and the divorce is inevitable, the agreement can still come in handy since some state laws require a waiting or separation period before filing for a divorce.

Whatever the reason for the agreement, you should approach marital separation seriously. Our free marriage separation agreement template combines all of the necessary components to facilitate the document’s preparation. You are encouraged to use the template along with our step-by-step guidelines to write a comprehensive and personalized agreement. It’s never redundant to consult your family attorney during the process.

Marital Separation Agreement

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When to Use a Marriage Separation Agreement

Marriage separation agreements can become useful in many cases. Sometimes, couples need a break from conflicts or financial issues affecting their marriage. A separation agreement can become a legal anchor to hold a marriage in place during the storm. If the decision to dissolve the marriage is final, then a separation agreement can serve as a preparation stage before divorcing and be transformed into a divorce settlement agreement later on. Marriage separation agreements can also be helpful in the following situations:

  • You live in a state where a waiting period is required to start divorce proceedings. 

States like Maryland and Nevada require one-year waiting periods before couples can start divorce proceedings. Connecticut, for example, requires an 18-month waiting period, and the District of Columbia requires a six-month waiting period. A separation agreement can help to easily go through the waiting period and settle everything before the divorce. Moreover, if you want to file for a no-fault divorce, it will serve as evidence to the court that a couple has not lived together for a required period.

  • You have certain religious beliefs. 

Sometimes, a couple cannot get a divorce due to their beliefs. Some religions consider a marriage to be an indissoluble union that cannot be interrupted with divorce. However, it can be quite hard for spouses to keep living together. A marriage separation agreement is a way to settle things down. A couple can live apart while still being married.

  • You want to keep social and healthcare benefits. 

Married couples often have more benefits regarding health insurance plans or taxes. If you are a military spouse, you have such benefits as military discounts, scholarships, and free healthcare. Therefore, you should carefully analyze all the pros and cons of your legal status. If having separate social security or medical plans is not for you, consider concluding a marriage separation agreement.

  • You would like to maintain legal marital status.

As mentioned above, being married can have some benefits. However, a couple can decide to maintain their legal status because they are not emotionally ready to be divorced or do not want to traumatize their children (if any). All in all, there is always a chance to reconcile. Therefore, a marriage separation agreement will help you avoid a headache connected with legal rights and duties’ division during a waiting period for either divorce or reunion.

Why It Is Beneficial to Have a Marriage Separation Agreement

A marriage separation agreement is a private document that helps arrange all of the issues regarding marital property and assets division, child support and visitation rights, debts, future earnings, and inheritance. If you have decided to separate or get a divorce but hesitate to agree on marital separation, you should consider some of its advantages:

  1. A marriage separation agreement can be concluded as a temporary contract. The agreement does not necessarily mean divorce. It’s a good way to settle both permanent and trial separation. So, if a couple needs time to pause the relationship without losing their status, a separation agreement is the right way to do it.
  2. It’s a private document. Since the agreement is not always a court order, it’s not publicly available, and nobody will see its terms without your consent. However, if states recognize a legal separation, it should be granted in the form of a court order. States such as Delaware, Florida, Georgia, Mississippi, Pennsylvania, and Texas do not recognize a legal separation.
  3. It includes everything that parties would like to regulate. The separation agreement is quite flexible and can include all of the desired information and responsibilities to regulate your separation. You can also amend it with both parties’ prior consent or by a court order (if the court has recognized your separation). Note that a court may always modify the terms regarding child support, child custody, and visitation arrangements for a non-custodial parent.
  4. It saves time and money. A marriage separation agreement is also an effective means to prepare for a divorce settlement. It can save you a lot of time and money you would have to spend on the litigation process.

How to Approach Marital Separation

No matter if you and your spouse want to separate or get a divorce, you should analyze the circumstances and come up with the most suitable decision. It’s useful to consult the family attorney on the issue. If you agree that marital separation is the only way out of your situation, try not to rush and approach the decision step-by-step:

Step 1. Discuss the reasons

The reasons for marital separation may be different. It would help if you outline your reasons clearly. It’s necessary to understand whether you would like to take a trial break living separately or want to arrange a permanent separation. Marital separation may also be the first step to a divorce. A precise reason will help you to arrange things accordingly and create a proper agreement.

Step 2. Make a plan

Once parties decide on the reason to get a separation, they should make a plan of action. Since marital separation does not mean divorce, a couple may approach it to rebuild the marriage. It’s possible to define some goals for a separation period that will eventually lead you to the reunion. Even if marital separation is the first step on your way to a divorce, the parties still need to plan everything: whether you will live together in the marital home or apart (in some states, it’s forbidden to live in the same residence during the separation), how you will tell your children (if any) about the decision, and if the marriage separation agreement will become a part of the divorce decree.

Step 3. Define the terms 

The most important part is to define the terms of your future separation. You should agree upon the marital property division and not forget to include arrangements regarding your minor children (if any). You are encouraged to consult your family attorney since the terms have to be reasonable, considering all the circumstances—how much each spouse earns and contributes to the marriage, their health, and age. It’s important even if you conclude a private contract because, eventually, you may decide to sue your partner for breaching the agreement. If the provisions are not justified, the court may not recognize them and, as a result, deny a claim.

Step 4. Sign the agreement

When all the provisions are defined, and your separation agreement is ready, you and your spouse should sign it. It’s required to do it in front of a notary public. You should again remind yourself of the reason for the separation. If you are aiming at a legal separation, it should be filed for court approval. It would help if you consulted the state laws since your state may not recognize a legal separation.

Step 5. Separate from your spouse

When the agreement is signed, it’s time to separate from each other in accordance with the terms. To separate from your spouse does not necessarily mean to move out of the marital home. You can both live under the same roof. However, you must prove that you live separate and apart by separating your assets, bank accounts, and debts, sleeping in different rooms, and not attending social events together.

What Information a Marriage Separation Agreement Should Cover

Although a marital separation can seem less serious than a divorce, you should not take it lightly. Whatever the reason for the agreement, it’s still a legally binding contract, and each party should comply with its provisions. Therefore, you should prepare the document thoroughly. Please make sure you include the following information.

Property and financial assets division

In case of marital separation, parties should agree on the marital property division, including marital home, finances, assets, and debts. Since you remain married, these terms are crucial to describe because living separately may not release one spouse from another’s debt. That’s why parties are required to disclose all of the real and personal properties and then precisely divide them. It’s also possible to regulate future earnings and inheritance in the agreement.

Child custody and child support

If you have minor children, you have to decide who will have legal and physical custody. Legal custody gives one parent the right to make significant decisions for a child regarding education or health care issues. Physical custody gives the right to have a child live with a parent. Separated spouses may share physical and legal custody, but in most cases, children spend most of the time with one parent and sometimes visit the other. The parents may also agree on the amount of child support. However, the judge may change these terms for a child’s best interest.

Visitation arrangements

In case you include child custody in the agreement, do not forget to describe parenting and visitation rights for a non-custodial parent. It’s common to have joint custody, but sometimes it’s impossible because one parent treats a child in a bad way. Therefore, one parent gets sole custody, and the other gets the right to see the child or children periodically.

Spousal maintenance and alimony

During a marital separation, one spouse may support the other by paying the alimony. It’s relevant when one partner has been dependent on the other during the marriage. Spousal support depends on different factors, including the parties’ earning powers, health, age, contributions to the marriage, and their prospects.

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Filling Out the Marriage Separation Agreement

When you have understood how to approach marital separation, analyzed all the pros and cons of it, and considered all necessary information to include, it’s time to write your document. Our free marriage separation agreement template is designed to facilitate this task. It includes all the important components, but you are free to consult the attorney. Please, fill in the gaps following the next steps:

Step 1. Identify the parties

At the beginning of the document, it is necessary to identify the parties to the agreement – Spouse 1 and Spouse 2. After that comes the introductory section describing the purpose of the separation agreement and its effective date. Note that the document becomes effective after its signing, and if the dissolution of a marriage does not occur, the agreement will be null and void.

Step 2. Define child custody and visitation rights

The next step is to define the child custody and visitation arrangements. First, you should identify each child, specifying their names, dates of birth, and social security numbers. You should name the children who will reside with Spouse 1 or Spouse 2 or jointly with spouses. It’s necessary to describe how the custody will be shared among the parents, whether joint or sole custody. If applicable, you have to include visiting rights and responsibilities.

Step 3. Specify the child support

If you and your spouse have agreed upon the amount of child support, you may include it in the agreement. You should specify the child support Spouse 1 or Spouse 2 will pay—the amount and period of payments. Note that the court may change all the arrangements for the child’s best interest.

Step 4. Describe the spousal support 

In the same way, you need to specify the amount of spousal support Spouse 1 or Spouse 2 will pay, if any, and the payment period. The terms of alimony payments may vary depending on the marriage length, earning powers, and spouse’s prospects. A non-earning or lower-earning spouse can get financial support, either short-term or long-term, to comply with a lifestyle they have during the marriage.

Step 5. Divide the assets and liabilities

The next important thing is to divide the marital property and future responsibilities. First of all, you need to specify who will retain the family home and identify the spouse’s new address who will move out (if applicable). You need to state the family home address, including county, city, street address, and zip code. It’s then necessary to divide all the debts and financial obligations paid by Spouse 1 and Spouse 2. The next section contains the property division, where you should list all the assets and finances that go to either spouse. It’s also possible to define insurance maintained by each spouse. Do not forget that you have to disclose all the real and personal assets before signing the agreement.

Step 6. Identify the governing law

As with other legal contracts, the governing law or laws (state and county) should be identified in your separation agreement. In this case, it’s quite relevant since not every state recognizes legal separation. Therefore, if you would like to submit your agreement for court approval, you should first consult your state law. Nevertheless, a separation agreement should be treated like any other legally binding contract.

Step 7. Sign the agreement

In conclusion, both parties should sign the agreement in front of a notary public. It’s important to include the date because the date of signatures is usually the agreement’s effective date.

Frequently Asked Questions

Is a Marriage Separation Agreement Legally Binding?

Like all the other legal contracts, your marriage separation agreement becomes enforceable after you and your spouse sign it. In the case of violating the separation agreement, one party can file a lawsuit against the breaching party. If you want to get a legal separation and submit your agreement for court approval, it will be treated as a judicial order. In this case, violating the agreement will be considered as contempt of the court. If the parties agree to divorce, a marriage separation agreement can be later incorporated into the divorce decree.

What is a Legal Separation?

Legal separation is a court-ordered agreement that outlines the spouses’ rights and obligations while living separate and apart. A legal separation may be a way out for partners who cannot live together but do not want or not ready yet to get a divorce. It may happen due to religious beliefs or health insurance benefits. A couple may not want to traumatize their minor children as well. All in all, a legal separation can help the parties to avoid a headache relating to a divorce. However, you should always consult your attorney and state law since some states do not recognize a legal separation.

What Is the Difference Between Marriage Separation and Divorce Settlement Agreements?

A marriage separation agreement can be used as a temporary agreement between two individuals living apart but still considered legally married. The agreement may help to rebuild the relationship while the parties are separate and apart. A divorce settlement agreement, in its turn, means a complete dissolution of marriage and always ends with a divorce decree. Both agreements include more or less the same information—division of marital property, financial assets and debts, child custody and support, parenting arrangements, alimony, and spousal support. However, the separation agreement can be a private document without court approval. A divorce settlement agreement is always granted in the form of a court order, so violating the agreement will be considered as contempt of court. Nevertheless, a marriage separation agreement can be followed by divorce proceedings and incorporated into the final divorce judgment.

Published: Apr 15, 2022