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Going through a separation can be a stressful and difficult process. Luckily, a marriage separation agreement makes this process as straightforward and painless as possible. This help guide will assist you in completing your marriage separation agreement and explain your options.

Division of Marital Property and Debts

One of the main things you will accomplish in your agreement is deciding how to divide the assets and debts that you or your spouse acquired during the marriage. Typically, property that was received prior to the marriage or after separation will remain with the original individual owner. However, you may choose to split up your assets in any way you want, whether owned jointly or individually. If you owned a home together, this will often be the largest asset that must be divided. You and your spouse can agree to let one of you keep it, or you may choose to sell the home and divide the net profits. If any one spouse retains title to the marital home and a mortgage exists on the property, that spouse must refinance the mortgage in his or her separate name within 60 days of signing this agreement, or, if you are filing this agreement in court, then within 60 days of receiving a final decree of separation.

Although you may specify how you want to divide any assets you wish in the agreement, you do not need to list every item the two of you own, unless you want to. It is sufficient to simply list the items that have significant monetary or sentimental value. Small knick-knacks do not need to be included unless you just want to be thorough or one of the spouses really cares about them. The agreement states that all property not specifically listed will remain with the spouse who has physical possession of it (if it is a tangible asset such as a boat or animal) or documented ownership rights (if it is an intangible asset such as a bank account or stock).

Child Custody

If applicable, you will need to decide which parent will have legal and physical custody of any children. "Legal custody" refers to the right to make important life decisions regarding the child, including decisions regarding education, upbringing, finances, and health care. "Physical custody" refers to the parent whom the child will primarily live with. You will also specify visitation rights for both parents in the next section.

There are many different potential arrangements for child custody. One parent might have legal custody while the other has physical custody, one parent might have both legal and physical custody, or the parents might both have joint custody. Awarding joint custody is the modern trend; however, custody usually depends on whatever is in the best interests of the child or children. Sometimes joint physical custody is impossible because the parents live too far apart. Other times, one spouse gets sole custody because the other spouse exhibited bad behavior toward the children in some way.

Child Support

It is very common for one parent to be required to pay child support. Most states make it easy to find their guidelines online so that you can calculate how much child support will be paid. It is helpful to review your state's guidelines to determine an amount that the court will likely approve.

Alimony

State law varies as to what kind and how much alimony or spousal support is permitted. If you live in a community property state (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, or Wisconsin), then an award of alimony in your case may be prohibited or greatly limited. The rationale for this is because the spouse in need of support will already be compensated more from the marital property than he or she would in non-community property states. For this reason, it is best to try to limit what you and your spouse agree on in the agreement as far as the amount and duration of the alimony to be paid.

Alimony Duration

Again, states vary as to how long alimony support may last. Typically, courts prefer to award alimony on a short-term basis—say one to three years—until the other spouse can become self-sufficient. However, some courts will allow for longer support if warranted under the circumstances. Therefore, keep in mind that the court has the power to alter the alimony amount and duration.

Executing Your Agreement

The final step is to have both spouses sign the agreement in front of a notary public. If you and your spouse live far apart, or are not on speaking terms, one spouse can sign in front of a notary and then mail, email, or fax it to the other spouse, who will also need to sign in front of a notary. Both parties should retain a copy of the fully executed agreement for their records.

Filing for Separation

Note that state law varies greatly as to the specific requirements for becoming legally separated. Most states require you to file your marriage separation agreement for court approval. Note that you do not need to file your agreement if you are a resident of Delaware, Florida, Pennsylvania, or Texas, as courts in these states do not grant legal separations. Instead, in these states marriage separation agreements are enforced simply as legal contracts between two individuals. For help figuring out the specific forms and procedures you should follow, you should contact a family or divorce court administrator, often the Clerk of Court, at your county divorce court. While calling the Clerk of Court is often the easiest way to figure out what is required of you, there are also many helpful online resources that can help point you in the right direction.

Residency Requirements

Some states require that one or both spouses have resided in the state for a certain amount of time before they can file for separation in that state, usually in the range of three to six months. The residency requirement for legal separation is usually much less than it is for filing for divorce. Check online or call your Clerk of Court if you are unsure whether your state has a residency requirement.

Attorney vs. No Attorney

Although an attorney can be helpful, they are not required. Many people opt to handle the separation on their own or through a neutral third-party mediator. Family law attorneys are most useful when there are issues in the separation that are hotly contested by the spouses, such as child custody, alimony, or the division of assets. However, if both spouses are willing to work together to negotiate, then you can consider not using an attorney. If you do have an attorney, you can still save yourself expensive legal fees by creating this agreement yourself and then having your attorney review it, instead of having the attorney draft it for you.

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Frequently Asked Questions

What is a marriage separation agreement?

Sometimes called a property settlement agreement, a marriage separation agreement is a written agreement that divides your property between you and your spouse. It is also used to work out alimony, custody, and child support. This document is usually created before or during a separation. If you have property, joint debts, or children, you can use a marriage separation agreement to work out the details of your separation so that everything is in writing and is clearly understood by both parties.

What should I include in a marriage separation agreement?

Since you and your soon-to-be ex-spouse need to agree, there is some negotiation involved in creating a marriage separation agreement. You may find that you have different priorities and that you each want different items. If you both want the same things, such as the family home, child custody, or possession of jointly owned property, this agreement will take more time to negotiate. Consider including any or all the following information, depending on your situation and what you are most concerned about:

  • Who will live in the family home?
  • Who will pay the expenses, including the mortgage, utilities, and other home maintenance?
  • What happens to the money in your bank accounts?
  • What happens to other assets like stocks, retirement accounts, and other investments?
  • Who gets the car and other big ticket items?
  • What happens to credit cards and accounts you share?
  • Who will pay your current debts? Will you divide them or will one partner pay them?
  • What happens at tax time, and who can claim the children?
  • Does one partner need spousal support or alimony?
  • Who will pay for child care?
  • Who will pay child support?
  • Who will pay tuition and college expenses?
  • Who will have custody of the children or what schedule will you use for shared custody?

Your marriage separation agreement should answer any of the above questions that apply to your situation and any others that are unique to you, from your vacation home to your other assets or responsibilities.

Does a marriage separation agreement need to be filed with the court?

Your initial marriage separation agreement can be made outside of the court, but will likely need to be submitted to the court if you choose to go through with divorce proceedings. Depending on where you live, the marriage separation agreement may be merged with the final divorce decree; it then becomes a court order and is enforceable by the court. If you do not have it incorporated into your decree, it is treated as a contract. You will have to file a lawsuit if your ex-spouse does not comply with the terms of your agreement in this case.

Are marriage separation agreements binding and enforceable?

During your separation, your agreement is a contract between you and your spouse. Once the court approves your divorce, the agreement could be treated in one of two ways:

  • The agreement is incorporated into the divorce decree, and violations are subject to contempt of court.
  • The agreement is not incorporated into the divorce decree. If one party violates it, the other will have to sue to get them to comply.

Can the marriage separation agreement be changed?

If you have not filed the separation agreement in court, then you may amend the agreement simply by creating a new one and signing it along with your spouse. If you have already initiated formal divorce proceedings, then you can change the separation agreement by amending it with court approval.

Ready To Get Started? Create a Marriage Separation Agreement