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What is a Separation Agreement?

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A separation agreement is typically used in states that offer legal separation. The separation agreement is drafted, then signed and filed with the clerk of court. The parties are “legally” separated, which means that they are divorced from bed and board only. While the parties are still legally married, states that recognize legal separation may deem property and assets purchased after the separation agreement as non-marital property. If the husband or wife wants to purchase property or a large asset (such as a vehicle), he or she should contact an attorney for legal advice regarding the purchase to find out if the purchase is marital or non-marital.

Issues Covered by the Agreement

A separation agreement decides the same issues as a divorce agreement–such as division of assets and liabilities, property ownership, custody and visitation issues, child support and alimony–and may be converted to a final judgment should the parties decide to get divorced.

State Requirements

Some states require a legal separation prior to allowing the parties to get divorced. If your state mandates a separation period, make sure that all issues are resolved within the separation agreement, including issues such as mortgage responsibilities and other liabilities. If one party is awarded the home, the separation agreement should state that the party awarded the home must refinance the mortgage into his or her own name within a certain amount of time.

Child Custody and Visitation

As for child custody and visitation issues, make sure there is a visitation schedule in the separation agreement giving the secondary parent a minimum amount of time to spend with the minor children. The parties can always agree on more visitation time, but in the event the primary parent decides to withhold visitation, there will be a visitation schedule that he or she must abide by in the separation agreement.

Potential Problems in Separation Agreements

Separation agreements in states that do not recognize legal separation may or may not be accepted by the courts. If the document is properly signed and executed, one could argue that it is a valid contract that the parties entered into and must abide by. Before the parties move to another state, it is advisable to contact an attorney in the new state regarding the validity of a separation agreement. If a separation agreement becomes invalid because a state does not recognize legal separation, the parties—or at least one of the parties—should request additional legal advice regarding the situation. Even if a state does not recognize legal separation, it most likely has a residency requirement that must be met by at least one of the parties.

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