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

Russell Family Law & Litigation • December 1, 2022

What to Look Out for While Creating a Separation Agreement

woman signing a document

When two partners want to live separate lives but aren’t ready for a divorce yet, their best option is to get a separation agreement. Granted, drafting one isn’t easy, and it will take a lot of hours of hard work. But it’s nonetheless an excellent first step. In fact, the better the separation agreement between the two parties, the less stress they’ll both feel during the process.

 

So, how would you draft a proper agreement to separate from your spouse? In this article, we will share some of the basic information related to the process and how you can best approach it. We will also delve a little into what an agreement should include and how you can do it quickly and efficiently. 

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. 

What issues may arise during a separation that need to be addressed?

When undergoing a separation, several crucial issues need to be addressed to ensure clarity and avoid conflicts. These include financial arrangements, such as deciding whether to maintain a joint bank account or separate credit cards, and establishing a budget for individual spending. Housing is another significant concern; it's essential to determine who will continue living in the family home. Additionally, shared responsibilities such as bill payments need clear allocation between both parties.

If children are involved, devising a parenting plan is critical. This plan should cover how both parents will share custody and handle visitation schedules. By addressing these issues early, separated couples can create a framework for their new living arrangements and reduce potential stresses during this challenging time.

How to put separation agreements in writing when separated?

Drafting a Separation Agreement: Key Steps to Consider

Essential Elements of a Written Separation Agreement

Creating a written separation agreement is a constructive step for couples who are contemplating a potential reconciliation or looking to define terms during a separation. A well-structured agreement can help eliminate misunderstandings and provide clear guidelines on various crucial aspects of this transitional phase.

  1. Financial Arrangements: Outline how bank accounts, credit cards, and household budgets will be managed. Decide if joint accounts will remain active and how responsibilities for debts and expenditures will be allocated.
  2. Living Arrangements: Determine who will reside in the family home or if alternative living arrangements are necessary. It’s important to address how the costs associated with the family home, such as mortgage, rent, and utilities, will be split.
  3. Parenting Plan: For couples with children, a detailed parenting plan is vital. This should include a schedule outlining when each parent will spend time with the children. It should also cover other parenting responsibilities and decision-making authorities.

Implementing the Agreement

Once these decisions have been made, it's crucial to capture them in writing. Although an informal written document can serve well, having a formal agreement drafted by a legal professional can ensure that all elements are legally sound and enforceable. Ensure both parties review and agree to the terms before signing.

In summary, a separation agreement acts as a roadmap for navigating the complexities of this period. By addressing financial, living, and parental arrangements upfront, both parties can move forward with a clearer understanding of their responsibilities and expectations.

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How are 529 Plans Handled in Divorce?

March 24, 2025
A 529 Plan, which owes its name to Section 529 of the Internal Revenue Code, is a tax-advantaged savings account that is designed to be used for the education expenses of the beneficiary. It is very common that parents create such an account to save for their child’s college education. So, what happens to such an account when the parents decide to divorce? 529 Plans , like other savings and investment accounts, are property. As such, in North Carolina, 529 Plans are dealt with during equitable distribution proceedings. During such a proceeding, the court will classify the parties’ property as one of three categories – marital, divisible, and separate – and then distribute the marital and divisible property among the parties. Thus, the treatment of the 529 Plan will depend upon how the plan is classified. N.C. Gen. Stat. 50-20 defines marital, separate, and divisible property as follows: Marital Property : “all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned, except property determined to be separate property or divisible property.” Separate Property : “all real and personal property acquired by a spouse before marriage or acquired by a spouse by devise, descent, or gift during the course of the marriage. However, property acquired by gift from the other spouse during the course of the marriage shall be considered separate property only if such an intention is stated in the conveyance. Property acquired in exchange for separate property shall remain separate property regardless of whether the title is in the name of the husband or wife or both and shall not be considered to be marital property unless a contrary intention is expressly stated in the conveyance. The increase in value of separate property and the income derived from separate property shall be considered separate property. All professional licenses and business licenses which would terminate on transfer shall be considered separate property.” Divisible Property : “all real and personal property as set forth below: All appreciation and diminution in value of marital property and divisible property of the parties occurring after the date of separation and prior to the date of distribution, except that appreciation or diminution in value which is the result of postseparation actions or activities of a spouse shall not be treated as divisible property. All property, property rights, or any portion thereof received after the date of separation but before the date of distribution that was acquired as a result of the efforts of either spouse during the marriage and before the date of separation, including, but not limited to, commissions, bonuses, and contractual rights. Passive income from marital property received after the date of separation, including, but not limited to, interest and dividends. Passive increases and passive decreases in marital debt and financing charges and interest related to marital debt.” Given these definitions, the classification and distribution of a 529 Plan will depend upon how and when it is created and funded. What is most important to note is that the court will not award the 529 Plan to the child, as the child is not a party to their parents’ divorce. Further, while the court may consider the purpose of the 529 Plan when making an “equitable” distribution of the parties’ property, the court will not totally disregard the value of the 529 Plan when distributing property among the parties simply because it is intended for the benefit of their child. However, the parties may take such considerations into account when negotiating a potential settlement between one another. If you are considering divorce or engaged in, or anticipate being engaged in, an equitable distribution proceeding, call our office today to schedule a consultation with an experienced family law attorney.

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The holiday season is a time traditionally associated with joy, togetherness, and celebration. However, for families going through a divorce, it can also be a time of heightened stress and emotional challenges. Managing these stressors effectively can help everyone involved – especially children – navigate this season with as much peace and stability as possible. Here are some common holiday stressors families experience during a divorce and practical strategies to address them: 1. Financial Pressures Divorce often brings financial changes that can make the holidays feel especially strained. Gift-giving, travel, and hosting events can add up quickly. Solution: Set a Budget: Be realistic about what you can afford this year. Focus on creating meaningful experiences rather than overextending financially. Free/low-cost experiences could include going to a holiday parade, going for a walk downtown or a drive around town to view the holiday lights, or taking the kids to the local mall or a store to visit Santa (or even the Grinch at some locations, such as the Cotton Exchange). Communicate with Co-Parent: Discuss gift budgets and avoid competitive or extravagant gift-giving, as this can create tension or unrealistic expectations for the children. 2. Emotional Strain on Children Holidays can amplify a child’s sense of loss or confusion about their family dynamics, especially if traditions are changing. Solution: Prioritize Consistency: Whenever possible, maintain familiar traditions to provide a sense of stability. Introduce new traditions as a way to create positive memories in this new chapter. Open Communication: Reassure your children that it’s okay to express their feelings and let them know both parents are committed to making the holidays special for them. 3. Loneliness or Isolation For people going through a divorce, the first holiday following separation can feel especially lonely and isolating. It’s normal to grieve the loss of how things used to be. Solution: Lean on Support Systems: Spend time with friends, family, or community groups that provide comfort and connection. Focus on Self-Care: Use this time to rest, reflect, and engage in activities that bring you joy and relaxation. 4. Co-Parenting Tensions The holidays can sometimes exacerbate underlying tensions between co-parents, particularly if communication is strained or agreements are unclear. Solution: Keep Communication Businesslike: Focus on logistics rather than rehashing old conflicts. Tools like co-parenting apps, such as Our Family Wizard or Talking Parents, can help keep interactions clear and professional. Put the Children First: Decisions should always prioritize what’s best for the children, even if it requires compromise. 5. Managing Extended Family Expectations Extended family members may have their own opinions or pressures about how holidays “should” look, which can complicate matters further and exacerbate holiday stress. Solution: Set Boundaries: Be clear with family members about your plans and priorities. Gently but firmly remind them that the focus is on creating a positive experience for your immediate family and avoiding negative talk about the other party or your current situation. Include Supportive Relatives: If possible, involve family members who can help diffuse stress and provide stability during this transitional time. If you are going through a divorce this holiday season and need legal representation, please contact our office to set a consultation with one of our family law attorneys.
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Co-parenting

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Co-parenting is crucial to ensure that children continue to receive the love, support, and guidance they need from both parents despite the parents’ separation or divorce. By working together, parents can create a stable and nurturing environment that fosters the emotional and psychological well-being of their children. Effective co-parenting helps children adjust to change, reduces feelings of insecurity, and promotes healthy development. It also models positive conflict resolution and cooperation, providing a strong foundation for children’s future relationships. Ultimately, co-parenting prioritizes the best interests of the children, helping them thrive despite the family restructuring. Successful co-parenting after separation or divorce requires open communication, mutual respect, and a focus on the well-being of the parties’ children. To best ensure the success of a co-parenting relationship, it is crucial to keep discussions child-focused, and avoid negative talk about the other parent in front of the children. Flexibility and willingness to compromise are key, as well as seeking professional help if conflicts arise that cannot be resolved independently. Prioritizing the children’s emotional and physical needs will help ensure a positive co-parenting experience. Here is a list of ideas for potential resources that may help co-parents manage and support their children’s well-being while navigating the changing family structure:  Books for Children Age-appropriate books explaining separation and divorce Stories that help children understand and cope with their feelings Therapists and Counselors Child psychologists for children’s emotional and mental health Family therapists specializing in co-parenting dynamics Support Groups for Children Peer support groups for children of divorced parents In-person and online groups providing a safe space for children to share their experiences School counselors and social workers providing support and guidance Mobile Apps Apps designed to help children understand and manage their emotions Co-parenting apps with features to ensure both parents stay informed about their child’s activities and needs Books and Guides for Parents Manuals on how to support children through the transition Guides focusing on effective communication with children post-separation Guides focusing on effective communication with your child’s other parent Podcasts and Videos Podcasts offering advice on supporting children’s mental health during divorce YouTube channels with content aimed at helping children cope with family changes
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