When a marriage dissolves, issues surrounding the division of property, temporary support payments, and the support and custody of children can be decided by the court, or preferably, by the spouses themselves. If the divorcing spouses can agree on major points, then a separation or settlement agreement avoids expensive legal maneuvers and inevitable delays that result when the parties must go to court.
Because laws specify that a divorce action cannot be filed until the spouses have lived apart for several months, the separation agreement can provide direction for basic financial support, payment of expenses and other matters in the interim. Additionally, the court can approve the separation agreement once the waiting period is over and the divorce action is filed, so that the couple can continue to operate under their agreement.
Generally, however, the separation agreement addresses more permanent matters: division and ownership of property, right to benefits and insurance, and medical coverage. Separation agreements that include provisions for issues typically decided by the court are also known as marital separation agreements or MSAs.
TIP: The agreement is also termed a “property settlement agreement” (or PSA) where the spouses have come to a final agreement on the division of their marital property.
A Marital Separation Agreement
is not the same as a "Legal Separation."
Legal separation is not a divorce, and it is obtained through a court action, ( a judicial proceeding). Unlike a divorce, obtaining a legal separation does not require a waiting period. The parties can fix their rights and obligations to each other immediately via the courts rather than waiting several months. A couple may want to avoid divorce and seek a legal separation because of religious reasons, tax and
insurance considerations or in order to continue to receive state or federal benefits. When you get a "legal separation" it is the result of a court order, and it has all of the characteristics of a divorce, except that you cannot remarry.
spouse can assume the entire
responsibility for debts even though the other would be liable under the
law. The separation agreement can even require a spouse to make certain
provisions in her will.
NOTE: Valid agreements will be overturned if the provisions are completely inequitable and unconscionable. For instance, if the agreement leaves the wife destitute without any property, it is invalid.
The rights of children are not affected by their parents’ separation agreement unless the court approves the terms of the agreement and incorporates them into the final divorce decree. Additionally, a court always has the ability to modify support, custody, visitation and any other issues concerning children while they are minors. For instance, the court can agree to the amount of child support set out in the separation agreement and make it part of the final decree, but that amount can be modified at any time without regard to the agreement.
TIP: If the court-approved separation agreement provides for additional support amounts beyond what the court orders, that amount is a debt the ex-spouse owes under the terms of the agreement.
The agreement can cover:
Yes. Laws require that separation agreements be in writing.
TIP: A written agreement is not required if you and your spouse made your agreements in open court before the judge. By speaking in court, your separation agreement is “on the record.”
Yes. The fact that you did not speak with a lawyer before you entered into the agreement does not make it invalid as long as you signed it freely and voluntarily. You must be able to show that you signed the agreement free of fraud, duress or undue influence.
No. The pressure you received from your husband to sign is not necessarily duress. If you could have continued to refuse to sign but signed anyway, then you entered into the agreement freely and voluntarily.
No. Your husband’s threat is really a promise to do what he has a right to do – file for divorce and litigate against you.
TIP: For a threat to constitute duress there must be a promise to do an unlawful act unless the threatened person does something they have a legal right not to do. For instance, the wife has a legal right to refuse to sign the separation agreement. If the husband says he will kidnap their children unless she signs, his threat amounts to duress. The agreement is invalid if the wife signs it.
If it has approved it, the court will enforce the agreement. The breaching spouse can be held in contempt of court and fined or sent to jail. If the separation agreement is not yet part of a court proceeding, the spouse can file for divorce and ask the court to enforce the provision that has been breached.
TIP: The separation agreement should include a penalty clause providing for restitution or payment if one of the parties breaches the agreement.
No. At the time you file for divorce, the separation agreement can be approved by the court and eventually incorporated into the final divorce decree.
No. Your separation agreement is not binding on the court until and unless the judge finds that the agreement is fair and voluntary.
No. The court can only approve or reject the agreement. If the agreement is rejected, the court will divide the property in a just and equitable manner as required by law.
TIP: Once the agreement has been approved by the court and made part of the final divorce decree, the court cannot modify it. For instance, if the agreement gave royalty payments to the husband, the court cannot later decree that the payments go to the wife and children. However, the court can increase the amount of child support.
Yes. The agreement can be changed or modified just like any other contract. However, the changes must be in writing and signed off on by both parties.
TIP: Even after the agreement is made part of the final divorce decree, the parties (not the court) can mutually agree to modify provisions concerning the division of property.
NOTE: The agreement is always a contract between the parties. The fact that it becomes part of a judgment does not change its contractual nature. The division of property was made pursuant to a contract between the parties rather than a judicial determination.
Yes. Provisions in the agreement concerning support, custody, visitation and other matters concerning the children are not binding on the court. The judge makes her decisions based on legal child support guidelines and the best interest of the children.
Yes. Your agreement can provide for contractual alimony.
Yes. Your reconciliation only revokes the separation agreement if you both have the express intention to abandon the agreement. Merely living together or cohabitating does not terminate the agreement.
NOTE: Resumption of sexual relations, joint management of the household, commingling of money, along with cohabitation, are facts that tend to show that the parties mean to terminate their separation agreement.
TIP: To avoid confusion as to whether the separation agreement is revoked if the couple reconciles, the agreement should include a provision that terminates it if the parties begin cohabitating again.