What is a Separation Agreement and How Does it Work?

Posted on Jul 22, 2013 by Katie Carter

A separation agreement is a legal contract between you and your husband that specifically sets forth the obligations of both parties after the dissolution of the marriage. It handles things like spousal support, child support, custody, and how the marital assets will be divided. I like to encourage my clients to think of these as flexible documents, designed to meet the specific needs of the people involved.

These documents should handle all the outstanding disputes between the parties, and make it possible for them to go their separate ways without winding up in court again and again as the years go by. Of course, if the people involved share children, it is much more likely that they will find themselves in court at some point over the subsequent years, but careful drafting can minimize this.

Why do people with kids end up back in court?

Because custody, support, and visitation is about the best interests of the children involved (as opposed to the best interest of the parents), the court will let you come back to modify any of these things if you can prove that there has been a material change in circumstances since the last order was entered. So, if your child’s father gets a raise, you can go back into court to modify the amount of child support you get. Spousal support, on the other hand, is not modifiable, even if your ex later gets a major pay raise. The theory here is that the children are entitled to the benefit of both of their parents at their best, while the ex-spouse is only entitled to the benefit of what was earned during the marriage. Anything post-separation is separate property, and you have no interest in anything that later accrues.

As you can probably imagine, especially if you have young children, you’re likely to wind up in court at least a couple of times before your children turn 18. Still, careful drafting can minimize the number of times you come into court. When drafting custody and visitation provisions, it’s a good idea to take into account what visitation is like now, and how visitation will change as the child grows older. If you’re trying to handle visitation with an infant, for example, it’s a good idea to think ahead and come up with a plan for what visitation will be like once the child starts school, too.

What are your goals?

If you’re interested in a separation agreement, you need to have an open and honest discussion with your attorney about what your goals and objectives are. Your attorney can keep YOU in mind while she’s drafting your agreement, and that’s the way it should be. The more you can discuss about where you want to be when your divorce is finalized, the more personalized your separation agreement will be.

Agreements can handle all sorts of things, from how you want trick-or-treating handled, to how to share custody of the family pets. Sometimes, personal property is a big deal, and couples spend a lot of time determining how to divide their most treasured possessions.

You should also remember that, as a legal contract, a separation agreement is a serious, formal document that you should be careful about signing. Once you sign it, there is no going back. It is virtually impossible to get a court to overturn a contract, so you should assume, before you sign, that your agreement is both final and permanent.