Separation agreements are prepared when the parties have settled all (or most) of the property issues in their case in advance of a court hearing. They are also used when the parties are filing for a legal separation. A separation agreement is a formal, voluntary, written contract which sets forth the division of marital property, allocates responsibility for debt and resolves the other issues in the case such as spousal support. If the parties have children, the separation agreement may also contain a parenting plan, although the parenting plan is often submitted to the court as a separate document.
What does a separation agreement contain?
A good separation agreement will be specifically tailored to the facts and circumstances of each case. In general, the agreement will identify the separate property of each party as well as the marital property; how the martial property will be divided and, if necessary, transferred between the parties; how marital debts and liabilities will be allocated; whether and how much maintenance will be paid; the amount of child support (if applicable) as well as addressing any pending tax issues (such as unfiled returns and dependency exemptions). The agreement will also address whether each party will assume their own attorney’s fees and costs or, if not, who will be responsible and to what extent, as well as providing some form of alternative dispute resolution (such as mediation) if the parties should later disagree as to the interpretation or implementation of the agreement.
Do separation agreements require court approval?
Although separation agreements are, essentially, contracts, they must be submitted to the court for approval before they are incorporated into the Decree of Dissolution (or Legal Separation) and become enforceable as a Court Order. The court will scrutinize the agreement to make sure it is “fair, equitable, and not unconscionable.” The court will also want assurances that each party has sufficient knowledge of the character and value of the property of the other; has had the opportunity to consult with legal counsel or has decided not to consult with an attorney despite being informed of their right to do so; and, has signed the agreement voluntarily and without the duress or undue influence of any person or circumstance.