The separation agreement is the document that governs the terms of a legal separation. While it is possible to draft your own agreement, this is only recommended in cases where both you and your spouse have minimal assets, agree to all the terms of the separation, and are unlikely to change your minds about the terms in the future. If the situation is more complex than this, having an attorney who understands your legal rights can be crucial. The separation agreement is a legally-binding document that should be drafted with great care and foresight.
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Legal separation is very similar to divorce, but stops short of terminating the marriage. Unlike trial separation, which is just a physical separation of the parties, through legal separation, spouses create a formal division of their property and establish rights to child custody, visitation and child support and separate maintenance payments. Once filed, it is difficult to amend the terms of a separation agreement unless both parties agree. If the separation is converted into divorce, the judge is most likely to simply carry over the terms of the separation into the divorce. The separation agreement has all the force of a legal contract between the parties. Therefore, both you and your spouse should consider all aspects of the separation, such as tax consequences and loss of benefits, before signing an agreement.
One of the benefits of legal separation over divorce is that it can preserve some of the benefits of marriage, access to Social Security payments, pension plans and health care coverage. If any of these rights apply to your situation, before entering into an agreement you should carefully read over the terms of any plan or policy to see whether the rights are modified by legal separation. When dividing property, be aware of whether you live in a community property or equitable division state. Consider the liquidity of the property you receive under the agreement, and whether sufficient funds will be available. A dependent spouse is usually entitled to maintenance payments sufficient to continue enjoying the standard of living realised during the marriage. Include a process for resolving any future disputes that might arise.
Drafting and Filing the Agreement
The process of legal separation begins, like divorce, with a petition filed in the family court division of the local county circuit court. Often, it is the same actual form. The exact process will vary by state and county, however. When drafting your agreement, it's critical to use a state specific form. If such a form is not available from your county court, there are generic free forms available online for reference and state-specific forms for sale. Assuming the separation is uncontested, the respondent, after being duly served with a copy of the petition and a summons to appear in court, can reply to the petition noting their consent. The process is fastest if the Separation Agreement is already drafted by the time of the court hearing, since it is required by the court in order to grant the separation.
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