How to Draft a Good Separation Agreement: The Nuts and Bolts

What to Look Out for While Creating a Separation Agreement

What Is a Separation Agreement?

Generally speaking, a separation agreement is a contract between two partners who have decided to separate before filling for a divorce. Many people confuse separation agreements with divorce or annulment. However, those are not synonyms. A divorce is a process wherein the two parties are no longer married. Legally speaking, your status after the process isn’t “single”, but rather “divorced”. An annulment, on the other hand, is a process wherein the parties treat their marriage as if it had never happened in the first place.

When we’re talking about separation, we need to focus on two of its most common types: formal and informal. The latter is essentially treated as a phase when the spouses decide to spend some time apart. They are still legally married and cannot enter a new marital unit. Formal separation is the next step after the informal one since it includes drafting an agreement and going to court. However, the couple still remains married, even with the agreement being valid. 

When Do You Use a Separation Agreement?

There are many different situations that warrant a separation agreement, but not a divorce. Here’s a brief list of the most common ones that people cite:

• The couple wants to separate and the partners need to decide on how to split their property
• Both parties want to have some time apart, but aren’t ready to divorce just yet and need time to decide on what to do next
• Parties are eager to separate but don’t want the court to decide on how to split the assets, preferring to do it themselves
• Each partner wants to retain the status of being married, but also to live separately from one another
• You and your partner are both willing to separate, but want to decide on the division of assets in advance before finalizing anything.

What Should You Include in the Final Draft of the Document?

Broadly speaking, these are the elements that need to end up in the final draft of the separation agreement:

• Asset division
• Debt division
• Partner support
• Spousal benefits
• Allocation of certain costs
• Child-related subjects
• Property expenses.

Tips and Suggestions on Drafting the Agreement

Disclosing Assets

It is important that both you and your partner disclose any assets you might have. For instance, let's say that you have $10,000 and do not disclose it in time. As a result, your partner may receive a higher percentage of that asset than they normally would. We recommend compiling a list with your partner, noting every single aspect you both own and double-checking just to be safe. 

Attorney Review

Legally, an attorney cannot represent a couple in drafting separation agreements. Instead, each party needs to have their own lawyer look over the draft once it’s completed. It’s also crucial to have representation early on in the process. One of the parties may waive the right to counsel, which will have to be stipulated in the document itself. If you do that, you will no longer be able to consult a lawyer later in the separation process. 

Court Intervention

Courts normally do not intervene in separation agreements and modify too many decisions related to the adult parties. They might, for instance, change some of the agreements regarding asset division, or even spousal care. However, 9 times out of 10, if the court does intervene, it will revolve around children that are under the age of 18. If a court deems an agreement not to be in the best interest of the child, they will step in and alter it accordingly. Some courts also intervene when it comes to pets. 

Waived Items

When you don’t specify an item within the agreement, such as an asset, that item is considered waived. As such, you can’t come back and claim it (or parts of it) once the separation is concluded. Once again, we stress that it’s important to mention all of the items and assets relevant to the separation. In addition, you need to have a clause within the document that stipulates waiving any claims or rights to items that the separation agreement didn’t include or mention. 

Divorce Order Incorporation

Some couples decide to incorporate their separation agreement into a divorce order. Once they do, the court can actually enforce the points made in the agreement. However, it can also modify certain points without much issue.

On the other hand, couples that don’t incorporate the agreement into the divorce order will not see any changes to it. Furthermore, the court cannot enforce any changes once the divorce is finalized.

Breaches and Lawsuits

While a separation agreement isn’t the same as a divorce order, it’s still a legally binding document and a contract. And if one party breaks the stipulations made in the contract, the other party can file a lawsuit against them. Furthermore, remedies for a breach of contract are definitely available. For example, if your partner breaches the agreement in any fashion, you can sue them for monetary or material compensation. 

Breaches Post-Incorporation

Of course, breaching the agreement still counts even after it’s been incorporated into the divorce order. If a partner violates any of the terms, you can have them held in contempt of court for not complying with the court order. As we stated earlier, a separation agreement is every bit as valid as a divorce order. As such, both partners need to follow the stipulated rules. 

Details

No matter what the issue may be between the two separating parties, you need to be as detailed in your agreement as possible. For instance, let's say that you two share a property and you need to sell it to cover the legal fees. Obviously, you must discuss every single aspect of the sale. That includes realtors, clients, the division of the earnings, as well as which items go to which party after the sale is done.

When it comes to children and visitation rights, you must decide on the dates as meticulously as possible. That means covering every single school holiday, trip, anniversary, or family event. The distance between the parent and the child must also be discussed.

It might be a tedious task, but getting all the details is crucial. The more details you have, the less ambiguity there will be when discussing certain issues. More importantly, there will be no room for interpretation of the rules. Thus, everything will be as smooth and fair as possible. 

Clarity and Lack of Ambiguity

When drafting the agreement, both you and your partner must be as clear and concise as possible, without any sort of ambiguity. Always state the terms you and your partner agreed on clearly and openly. If there are certain legal terms you do not understand, speak to an expert and have them clarified. There are times when legal terminology can purposefully mislead a party, and you will want to avoid that as much as possible. 

Conflicting Terms

The worst detail any separation agreement can have is conflicting terms. In a nutshell, those are terms that clash due to one or more details within the terms either overlapping or contradicting themselves. One such example can include property. Let’s say that you want to sell your hatchback and the agreement states that the sales result in you getting 70% of the earnings. But then, a different term states that all vehicles go to your partner, not including the bicycles and the skateboards. Since the hatchback can’t belong to your partner AND be an item you can sell at the same time, you and your partner have a conflicting term on your hands. 

Separation Agreements in a Nutshell

Separation is never easy; that much is clear. It’s a time of emotional turmoil, and one wrong decision can be life-changing. Hopefully, this article will help you draft the most suitable separation agreement that will leave both you and your former partner satisfied in the end.