The topic of divorce is never easy… but sometimes it is the only option available to us. In most states, a married couple can settle separation issues between themselves by voluntarily executing a separation agreement or contract before the actual separation. In order for the separation agreement to be valid and become an enforceable contract in any court, it must be signed by both the agreeing parties and notarized. A separating couple is not required by law to execute an agreement but it’s still a good idea to have an agreement in writing as verbal agreements between the separating spouses can’t be enforced in court.
A separation agreement covers the legalities regarding property, debts, children and all other matters in the marriage. This agreement is a legal contract that protects yourself and your spouse if issues should arise after you separate until the time you get divorced. It can include division of real property, tangible property such as furniture, jewelry and cars, intangible property such as bonds and stocks, life insurance and vested pensions. It can also include who will pay certain debts. Keep in mind that an agreement to pay joint debts can be enforced between both parties and doesn’t relieve either spouse from the obligation to pay the debt to a financial institution or bank.
The separation agreement may also include child support and custody details, but this matter can be modified by the court if the court determines that the agreement doesn’t serve the best interests of the children. If it does, then there’s a presumption that the agreement regarding the children is reasonable and fair. The agreement may also determine which party claims the tax exemption for children. One of its advantages is that both parties can agree as to who is responsible to pay for the expenses of the children’s college education. Since the court can’t order any party to pay the cost of college education, the couple must determine if a settlement agreement can be a better option than litigation. The court can overturn an agreement regarding alimony or property division if the court determines that the agreement was signed because of fraud, under coercion, due to lack of mental capacity, and in ignorance.
The separating couple can make an agreement on child custody. The court can always make modifications on a separation agreement involving child custody based on the best interests of the minor child. However, if the separation agreement also happens to be a court order, the modification of custody provisions is dependent upon a substantial change in circumstances.
A separating couple must keep in mind that a separation agreement can have serious, long-lasting impact on their obligations and rights. It’s advisable for a married couple considering legal separation to consult with their respective family law attorneys for drafting a legally-binding Separation Agreement and Property Settlement before the actual separation. Since this agreement is not likely to be changed by a judge when duly signed and notarized, it’s best to have a lawyer to give legal advice about the implications and the legal effect of the separation agreement.