How to Go About Getting a Separation Agreement
A separation agreement, also known as property settlement agreement, is a legally binding written contract and deals with important divorce-related issues like child custody, spousal support, and division of marital property. It can be drafted at anytime after the spouses have decided to divorce. Actually, you can enter into an agreement with your spouse even when both of you are living together. This agreement contains mutually agreed terms and condition for divorce. It also describes the nature of future relationship with your spouse after divorce. This agreement can be used as an evidence to establish your separation status from your spouse. It also proves your date of separation.
A separation agreement bestows certain benefits and advantages on the spouses. This agreement can enable you to continue to receive certain benefits from the marriage such as medical benefits. Moreover, if the divorce occurs after ten years of marriage, you are entitled to get some social security benefits also. The separation period before divorce gives couples a chance to rethink about their decision to part the ways. Anyway, if divorce happens, separation agreement can be converted into divorce settlement agreement.
There is no need to submit a separation agreement before a court as it does not require court approval to become valid. However, when you file for divorce, this document has to be attached to the divorce application. You should also request the court to incorporate the terms and provisions of this agreement into the final divorce decree. If the separation agreement is not incorporated into the final divorce verdict, it will remain as a mere contract between you and your spouse. The court cannot enforce or implement its provisions and one of the spouses has to again go to the court to make it legally enforceable.
A separation agreement defines your rights, responsibilities, and obligations from the marriage. This agreement remains in effect as long as the spouses live separately. If you or your spouse wants to make any amendments to the agreement, you can do it with mutual consent. Court can also make changes to the provisions of agreement, unless it has been decided that the agreement is not subject to court modifications. However, court has complete jurisdiction to amend all the provisions related with custody and care of minor children.
The separation agreement enables the parting couples to have a divorce without contesting each other in the court. Usually, the court agrees with the agreement if it is convinced that the agreement is devoid of any unfairness and both couples have signed it without any compulsion or fraud. The court also has the jurisdiction to verify the fairness of provisions for financial settlements like the division of marital property.
The court always aims to divide marital property on an equitable basis. This does not necessarily mean an equal division and it is rarely so. The division will be more or less equal if you both had a long marriage, have almost equal wealth prior to marriage, the earnings of both are approximately the same and you are without any minor children. On the contrary a court is likely to grant more of the marital property to your spouse under these conditions: inability to earn much, ill health, custody of any minor children, has marital as well as non-marital property etc.