What terms should be included in a separation agreement?

Although a legal agreement is not required when a couple decides to separate, working out certain details can preserve harmony, protect rights, and promote predictability. A separation agreement may be most advisable when the parties have very different financial situations, such as when one spouse is the wage-earner and the other is raising the couple's children. A formal separation agreement can help ensure that all family members' needs will be met.

An attorney can make sure that a separation agreement covers all necessary details and complies with applicable law. Although it may seem like a good idea to save money by having one lawyer draft or review the agreement, it is really in each party's best interests to be separately represented, so that each lawyer can draft or review the separation agreement with his or her client's needs in mind. The terms of such agreements will vary, depending on the needs of the particular parties involved, but the following items should be addressed:

  • The spouses' right to live separately
  • Custody of the children
  • A visitation schedule, or a provision for reasonable visitation
  • Child support
  • Alimony or spousal support
  • The children's expenses, including medical, dental, educational, and recreational
  • Property and debt division
  • Insurance, including medical, dental, and life
  • Income taxes

A separation agreement does not need to be filed with the court, but can be presented to the court if a dispute arises. As with pre-and post-marital agreements, a separation agreement may be unenforceable if either party failed to make a full disclosure or coerced the other to enter into it. If and when the parties officially file for divorce, the separation agreement's terms may be incorporated into a settlement agreement, but the parties will have an opportunity to change the terms if necessary.

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