Does a Separation Agreement Supercede a Divorce Judgment?

By Elizabeth Rayne

While a separation agreement is often a first step toward a divorce, the divorce judgment provides the final say on the terms of the divorce. The particular laws and legal terminology will differ depending on your state, but generally separation agreements allow couples to maintain some control in an otherwise stressful situation.

Separation Agreement

Either before filing for divorce or as an alternative to divorce, couples may enter into a separation agreement. The agreement provides that the couple will live separate and apart, and spells out the terms of the separation, often including many of the provisions you would find in a divorce judgment, such as property division, alimony, child support and custody. The agreement is a legal contract between the spouses. Depending on the laws of your state, you may have the option, or be required, to file the agreement with the court to ensure it is binding.

Effect on Divorce Judgment

Depending on the laws of your state, your legal separation agreement may provide the basis for a divorce. For example, in New York, a couple may convert their legal separation into a divorce one year after signing the agreement. The court may then incorporate some or all of the terms of the agreement into the divorce judgment. Without an agreement in place, it would be up to the judge to rule on the terms of the divorce, such as property division and child support.

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Getting a Legal Separation in Arkansas


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How Many Days Apart Equals a Legal Separation?

Legal separation is not typically defined by the amount of time you and your spouse live apart. In many cases, it depends on whether an agreement or a court order is in place that governs the terms of your separation. State laws vary, and you may be legally separated when an agreement or court order exists, even if neither of you has moved out of the marital home yet.

Separation & Divorce in Virginia State

Living separate and apart for a period is a prerequisite for most grounds for divorce in Virginia. The state broadly and simply defines separation as a continuous break from being husband and wife. Understanding how voluntary separation affects your divorce, as well as the situations in which the court can order a separation can help you better prepare for your Virginia divorce.

Examples of Grounds for Divorce

No matter which state you live in, you must have grounds to file for divorce. All states allow for "no-fault" divorce, meaning that neither spouse is held responsible for the marriage ending. Additionally, many states allow couples to request a divorce based on the fault, or marital misconduct, of one spouse. Depending on the state, finding one spouse at fault may affect the terms of the divorce.

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