Marital Separation Agreement

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:

    • Marital Separation Agreement

    • 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 Court 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.