If you and your spouse are drafting a separation agreement in anticipation of divorce or just living apart, it's usually better to say too much than too little. These documents – also called marital settlement agreements or property settlement agreements in some states – can be unique to your personal concerns, so the more detail the better. When you decide to proceed with a divorce, having a signed agreement makes your divorce uncontested. If you've covered everything, there's nothing left for the court to do but approve it and grant your divorce. A judge will usually do so unless he thinks it's unfair to you, your spouse or your children.
If you have children, a separation agreement covers both custody and support issues. Custody involves more than which parent your children will live with and on what days. You can include provisions for holidays, special occasions and vacations. These issues fall under the umbrella of physical custody. If your children live with one parent most days, the other has visitation, so you can complete a schedule detailing this. Legal custody involves decision-making, and you can state whether you and your spouse will share this responsibility or if only one of you will deal with important issues. Everyday decisions are typically the responsibility of whichever parent the children are living with at that time. State laws for calculating child support can vary, so access a worksheet from your local courthouse or your state's website and complete it to figure out how much one of you should pay to the other. If you choose a figure at random and it doesn't conform to your state's child support guidelines, a judge might not approve your agreement if you later decide to divorce. You can also specify how child support will be paid, either directly or through your state's child support services office.
Most states don't have specific calculations for spousal support or alimony. You can decide on a figure that suits you, or you can even decide that no spousal support will be paid. If you do decide on support, you may include when and if it ends and whether it can be modified. If you're going to waive alimony, it's usually a good idea to say so specifically.
There are two types of property in a divorce: separate and marital. Separate property is that which you brought into the marriage or acquired by way of gift or inheritance. Marital property is anything acquired during your marriage, including real estate, vehicles, bank accounts, retirement plans, insurance policies, investment accounts and even household furnishings. When you draft a separation agreement, you can agree on who is going to keep what. If you're not planning to divorce immediately, the marital home might be an issue. If one of you will continue to live there, provisions can be made for who is going to pay for maintenance, the mortgage and other associated expenses, and when or if you will eventually sell the home.
Most spouses acquire at least some debt, and your separation agreement can also address who's going to pay it off after you part ways. Typically, if one of you is keeping an asset that serves as security for a loan, such as a car, that spouse also assumes responsibility for the associated debt. When you're drafting your own separation agreement, however, you can make whatever provisions suit you. You can obligate one spouse to refinance a secured loan from both names into one name or have one spouse take on contractual liability for paying off a joint loan on her own. Don't forget unsecured debts, such as credit cards, medical bills and student loans.
Depending on your state and insurance provider, it's sometimes possible for separated spouses to remain on the same health insurance policy until they actually divorce. If this is a consideration for you, you can include terms for insurance in your separation agreement, but check with a local lawyer or your insurance company first to make sure this is permitted where you live. If you have children, the court will likely expect you and your spouse to continue medical coverage for them, so you can include provisions for this in your agreement as well. If you don't cover this matter, a judge may add court-ordered terms to your agreement at the time you divorce.