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What Is It?

A Separation Agreement is a contract between spouses evidencing their consent to live apart and setting forth their rights and obligations toward one another while living apart. The Agreement may provide that after the Agreement has been in effect for a year or more, either party may use it as the basis for a conversion divorce with the consent of the other party.

Because it is a legally binding contract, a Separation Agreement - often referred to as an Opting-Out Agreement in a litigated divorce - is presented to the Court in the final stage before a legal divorce is granted.

Who Is It For?

Separation Agreements are for...

Couples who are unsure about whether their marriage will continue and who want to live apart
Couples who want a divorce and believe they can negotiate the issues associated with ending the marriage without resort to litigation, and are willing to wait a year before getting a divorce
Couples who reach a negotiated agreement on property and other issues during the pendency of their divorce proceeding.
Couples how have reached a comprehensive agreement (Settlement Agreement) as an outcome of their Collaborative Divorce process.

You May Ask...

If there is little or nothing to divide up and we are both in agreement about everything, why bother to write it down?
If we’re both in agreement and we write it down, why use an attorney?

Couples who have little property or material wealth and no minor children are sometimes inclined to prepare their own separation agreements using their own ideas about what should be included, or a form they found on the internet, or an agreement prepared by an attorney for someone else. Certainly, some parts of a separation agreement are boilerplate (standard terms that appear in most every separation agreement), and for the most part you are free to agree upon any distribution of your things that you deem fair and reasonable, but if your separation agreement is to be used as the basis for a divorce, or if it ever becomes necessary to try to enforce its provisions in a court, your agreement is going to be reviewed by a judge and compared with certain standards and requirements and may be found to be ineffective and unenforceable.

Just as importantly, using a lawyer to prepare your agreement will ensure that you are aware of the options and implications of provisions that may look neutral or unimportant on their own.

The problems associated with preparing your own separation agreement are compounded when the parties make a verbal agreement and are left to depend on the memory and consistency of each other’s actions for years after. While cost is often the reason given for attempting a do it yourself separation agreement, it may be that one partner in the relationship has more knowledge, is able to control or unreasonably influence the other, or is concerned that some important issues be soft-pedaled or avoided altogether in the interest of getting an agreement in place. The savings in legal fees is often far outdistanced by the cost to one of the parties when the effect of the agreement becomes clear.

Bear in mind that most legal expense is incurred as a result of disagreements between the parties. If you and your spouse are in real agreement about the division of property and other matters in your separation, the legal effort and therefore the legal fees, perhaps with a payment plan, should be manageable for nearly everyone.

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