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Sample Marital Separation Agreement
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT (the "Agreement") dated this _____________of _____________, 20___.
BETWEEN:
________________
______________, _____________,
in the State of _____________, _____________
-and-
________________
______________, _____________,
in the State of _____________, _____________
- ________________ and ________________ (collectively the 'Parties' and individually a 'Party') were lawfully married on ______________ _________, ____________________, in ______________, _____________. Due to certain differences that have developed between the Parties, they agree to live separate and apart from each other, subject to the terms and conditions in this Agreement.
- The Parties have made complete, fair and accurate disclosure to each other on all financial matters reflected in this Agreement.
- The terms of this Agreement are intended to settle the matters addressed, but it will not be incorporated into a final decree of divorce. The Parties agree that a subsequent separation agreement will have to be made and duly incorporated into a final decree of divorce.
- The Parties have each consulted an attorney with regard to his or her legal rights arising out of the marital relationship and the terms of this Agreement.
- The Parties have each voluntarily entered into this Agreement and have not been forced by anyone to sign this Agreement, and both Parties confirm that they are in sound mental health.
BACKGROUND:
IN CONSIDERATION OF the mutual promises and covenants contained in this Agreement, and other valuable consideration, the receipt and sufficiency of which consideration is acknowledged, the Parties agree as follows:
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LIVING SEPARATE AND APART
- The Parties have lived separate and apart since ________________________________. Neither Party will attend the other's living space or work without invitation or approval.
- There is one child of the marriage, namely:
Name:
Date of Birth:
____________________
_____________ _____________, ____________________
CHILD CUSTODY - The Parties agree that sole legal custody is in the best interests of the child. The Parties agree that ________________ is granted sole legal custody, and has the primary right to decide regarding matters of health, education and welfare in the child's best interests. ________________ may make emergency decisions affecting the health or safety of the child when the child is in her physical care and control. The Parties agree that the grant of sole legal custody to one Party does not deprive the other Party of access to information regarding the children.
- The Parties agree that the child will primarily reside with ________________.
- The Parties also agree that ________________ will have the following visitation time with the child:
- Regular visitation schedule:
______________________________________________ - Vacation visitation schedule:
______________________________________________
CHILD SUPPORT - Regular visitation schedule:
- ________________ will pay child support in the amount of $_________ monthly to ________________. Child support payments will commence on ____________ and will be paid on the _____ day of each and every month.
- ________________ will pay a total of $_____________ monthly to ________________ for the child's uninsured health care costs, child care costs, and other additional costs, such as __________________________. Child support payments for these expenses will commence on _______________________ and will be paid on the _____ day of each and every month.
- The Parties agree that each will provide the other copies of their income tax return and any notices of assessment and re-assessment issued, on an annual basis.
- ________________ will maintain health insurances, including medical and dental coverage, for the benefit of ____________________.
- Subject to the laws of _____________, child support payments, contributions to uninsured health care costs, child care costs, additional costs, and the maintenance of health insurance will continue as long as a child is under the age of majority and financially dependent on the parents. SPOUSAL MAINTENANCE
- Neither Party claims entitlement to spousal maintenance. Both Parties expressly waive any claim to spousal maintenance now and in the future, regardless of any change in circumstances experienced by either Party. ASSETS
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The Parties acknowledge that they have agreed upon a division of all assets, owned or possessed by them as marital property or separate property. The Parties are in possession of all of those assets to which each is respectively entitled. Accordingly, neither makes any claim to any assets in the possession of the other.
DEBTS - The Parties agree that any indebtedness secured against, or attributable to, any item of property that either Party is receiving under this Agreement will be the sole responsibility of the Party receiving the particular property.
- Neither Party will incur any further debt or liability on the other Party's credit. Any debt accumulated as of the date of this Agreement is the debt of the individual Party, regardless if the debt was incurred as a result of joint credit.
GENERAL PROVISIONS - The Parties will promptly sign and give to the other all documents necessary to give effect to the terms of this Agreement.
- This Agreement contains the entire agreement between the Parties about their relationship with each other. It replaces any earlier written or oral agreement between the Parties.
- Should any portion of this Agreement be held by a court of law to be invalid, unenforceable, or void, such holding will not have the effect of invalidating or voiding the remainder of this Agreement, and the Parties agree that the portion so held to be invalid, unenforceable, or void, will be deemed amended, reduced in scope, or otherwise stricken only to the extent required for purposes of validity and enforcement in the jurisdiction of such holding.
- The Parties may only amend this Agreement in writing after both Parties have obtained legal advice on the changes.
- In the event that a dispute arises regarding this Agreement, the Parties will try to resolve the matter through negotiation or mediation, prior to initiating a court action.
- Notwithstanding that the Parties acknowledge and agree that their circumstances at the execution of this Agreement may change for any reason, including but without limiting the generality of the foregoing, the passage of years, it is nonetheless their intention to be bound strictly by the terms of this Agreement at all times.
- This Agreement creates a fiduciary relationship between the Parties in which each Party agrees to act with the utmost of good faith and fair dealing toward the other in all aspects of this Agreement.
- The Parties agree to provide and execute such further documentation as may be reasonably required to give full force and effect to each term of this Agreement.
- The headings of this Agreement form no part of it, and will be deemed to have been inserted for convenience only.
- This Agreement will be binding upon and will enure to the benefit of the Parties, their respective heirs, executors, administrators, and assigns.
- If the Parties reconcile, the terms of this Agreement will remain in effect unless the Parties revoke it in writing.
- This Agreement may only be terminated or amended by the Parties in writing signed by both of them.
- The laws of the State of _____________ will govern the interpretation of this Agreement, and the status, ownership, and division of property between the Parties wherever either or both of them may from time to time reside.
IN WITNESS WHEREOF the Parties have duly affixed their signatures on this _____________of _____________, 20___.
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ACKNOWLEDGMENT
THE STATE OF _____________
COUNTY OF____________________
I, Attorney, within and for said County and State, do certify that on this day came before me, ________________, personally known to me, whose name is signed to the foregoing Separation Agreement and so acknowledged his signatures on this Separation Agreement and that ________________ entered into this Separation Agreement on his own free will and volition without force or duress by any Party.
Given my hand and seal this ___ day of ____________________, 20___.
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ACKNOWLEDGMENT
THE STATE OF _____________
COUNTY OF____________________
I, Attorney, within and for said County and State, do certify that on this day came before me, ________________, personally known to me, whose name is signed to the foregoing Separation Agreement and so acknowledged her signatures on this Separation Agreement and that ________________ entered into this Separation Agreement on her own free will and volition without force or duress by any Party.
Given my hand and seal this ___ day of ____________________, 20___.
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CERTIFICATE OF INDEPENDENT LEGAL ADVICE
THE STATE OF _____________
COUNTY OF____________________
I, _______________________________, of the City of ___________________________, in the State of _____________, Attorney, DO HEREBY CERTIFY:
THAT I was this day consulted in my professional capacity by ________________, named in the within instrument, being a Separation Agreement, separate and apart from ________________, as to his legal rights and liabilities under the terms and conditions of it, and that I acted solely for him, and explained fully to him the nature and effect of this foregoing Separation Agreement and he did execute it in my presence, and did acknowledge and declare that he was executing it of his own volition and without any fear, threats, compulsion or influence from ________________ or any other person.
DATED at the City of _________________, in the State of _____________ this ___day of _________, 20___.
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I, ________________, the person named in the annexed Agreement, hereby acknowledge the foregoing this ____day of ______________20___.
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CERTIFICATE OF INDEPENDENT LEGAL ADVICE
THE STATE OF _____________
COUNTY OF____________________
I, _______________________________, of the City of _________________________, in the State of _____________, Attorney, DO HEREBY CERTIFY:
THAT I was this day consulted in my professional capacity by ________________, named in the within instrument, being a Separation Agreement, separate and apart from ________________, as to her legal rights and liabilities under the terms and conditions of it, and that I acted solely for her, and explained fully to her the nature and effect of this foregoing Separation Agreement and she did execute it in my presence, and did acknowledge and declare that she was executing it of her own volition and without any fear, threats, compulsion or influence from ________________ or any other person.
DATED at the City of __________________, in the State of _____________ this ___day of _________, 20___.
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I, ________________, the person named in the annexed Agreement, hereby acknowledge the foregoing this ______day of ______________20___.
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What is a Marital Separation Agreement and How is It used?
A Marital Separation Agreement is a legally-binding document that outlines how you and your marital partner will divide marital finances and family responsibilities when the relationship is terminated. A Marital Separation Agreement typically allocates such things as marital property, assets, debts, and if applicable- spousal support, child custody terms, parental responsibilities, and child support.
A Marital Separation Agreement is also known as:
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Legal Separation Agreement
Divorce Separation Agreement
How is a Marital Separation Agreement different than a Divorce?
Marital Separation— Couples often separate prior to or during divorce proceedings. Marital Separation is when you and your partner want to live separate and apart, but are still legally married under the law. In a Marital Separation, you may proceed to divorce, remain separated temporarily or permanently, or reconcile.
In some jurisdictions, Legal Separation and any applicable waiting periods may be mandated pre-requisites for filing for a divorce. A Legal Separation Agreement can be used as evidence to the Court of exactly when you and your partner began living separate and apart, and the terms of your separation.
Divorce— is by decree of the Court via a Final Judgement and Dissolution of Marriage- often referred to as the divorce being “final”. You and your partner are no longer married and your marital rights and responsibilities under the law are terminated. The divorce decree will include a Divorce Separation Agreement that details how finances and family responsibilities will be divided among the parties.
Why use a Marital Separation Agreement?
A Marital Separation Agreement allows you to have a say on how your rights and responsibilities will be allocated, rather than having such matters dictated by the Court.
A Marital Separation Agreement enables you to clearly document the terms of your separation, rather than rely on verbal agreements.
A Marital Separation Agreement details specifically the separation of marital finances and family responsibilities among the parties.
A Marital Separation Agreement may be advised in any of these circumstances:
IF you and your marital partner have decided to live separate and apart prior to- or during divorce proceedings;
IF you want to permanently live separate and apart in lieu of a divorce and maintain legal marital status;
IF you and your marital partner already know and agree how you will separate finances and family responsibilities;
IF you have no marital property, no joint finances and no children, you probably do not need a Marital Separation Agreement for a no-fault divorce. Even so, a Marital Separation Agreement is never a bad idea.
When should I make a Marital Separation Agreement?
A Legal Separation Agreement can be executed before or after filing for divorce, and even if you and your partner are still living together.
You do not have to file a Marital Separation Agreement with the Court for it to be effective. An executed Separation Agreement is a legally-binding contract in and of itself, some or all of which may be considered or included in the final divorce judgement.
What is the difference between Contested and Uncontested Divorce?
A contested divorce is when the respondent party disputes any issue in the Divorce Separation Agreement. An uncontested divorce, also known as a consent divorce, is when the parties agree on all major issues. Another category of an uncontested divorce is by default, when the respondent party fails to appear or cannot be located to contest any issue in the Divorce Separation Agreement.
By entering into a Divorce Separation Agreement, you make your divorce an uncontested divorce. In an uncontested divorce, the Court nearly always approves the Divorce Separation Agreement, providing it is fair and reasonable to both parties and if there are children, then in the best interest of the children.
How long does a Marital Separation Agreement last?
A Legal Separation Agreement may govern you through many years, so careful consideration is warranted. Unless specifically stated otherwise, it is possible to modify or amend a Legal Separation Agreement, providing both parties consent. The Courts can also modify the provisions of a Legal Separation Agreement and are most likely to do so for issues related to children’s best interests.
How do you make sure a Marital Separation Agreement is fair?
A Separation Agreement should be drafted in good faith and it’s important to consider guidelines and formulas used by the Courts. Equitable division does not necessarily mean equal division for assets and liabilities. Several factors are considered to determine what is equitable, including length of marriage, financial contributions/earning power of the parties, health and age of spouses, custody of children, etc.
If you can come to an agreement on spousal support/alimony and/or child support where applicable, the specifics may be included in a Divorce Separation Agreement. As long as the terms are equitable to both parties, and reasonable and realistic based on the given circumstances, the more likely the same terms will become part of the divorce decree, however the Courts have ultimate discretion.
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Sample
Marital Separation Agreement
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