What a Separation Agreement Covers

By Beverly Bird

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.

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.

Spousal Support

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.

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Assets

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.

Debts

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.

Insurance Coverage

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.

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How to Create a Separation Agreement
 

References

Related articles

How to Draft Legal Separation Terms

Legal separation is a marital status that falls somewhere in between marriage and divorce. It serves the needs of couples who wish to separate but elect not to divorce for moral or other reasons. Legally separated spouses formally divide their assets and debts, then live apart and maintain separate finances. In some states, a court adjudicates and grants a legal separation; in other states, a legal separation agreement is enforced as a contract negotiated between the spouses.

How to Prepare a Legal Separation Document

A legal separation is a divorce in all but name. It can serve as a temporary solution for couples desiring a "trial" divorce, or as a permanent arrangement for couples unable to divorce because of religious convictions or financial affairs, such as the need for one spouse to continue on the other's health insurance. Drafting a legal separation agreement requires that both spouses come to terms regarding the same legal and financial issues resolved in a divorce case, including distribution of assets and debts, child custody and support, and spousal support. In some states, courts review and grant legal separation agreements, while in others, the agreement stands as a contract between the parties.

How Do I File for Legal Separation in Nebraska?

Only a handful of states recognize legal separation -- a separation that occurs when you receive a judgment from the court, not when you just sign a separation agreement with your spouse. Nebraska is one of these states and the procedure is virtually identical to filing for divorce. At the end of the litigation, the court will issue an order for the division of marital property, custody and support. The greatest difference is that with a judgment of separation -- as opposed to divorce -- neither you nor your spouse are free to marry again.

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