What Is a Separation Agreement?

Learn what goes into a separation agreement, why you might need one when you and your spouse have decided to live apart, and how to get help creating an agreement.

By , Attorney · Cooley Law School

If you've reached a point in your marriage when you and your spouse need to be apart, but you're not ready for a divorce, you might be considering a separation—whether as a trial, a prelude to divorce, or a legal status that's short of an actual divorce. Whatever your intentions about how long the separation will last, it's a good idea to sit down with your spouse and figure out how you'll handle your finances, property, and children while you're separated. And because people change their minds—or have conflicting memories about what they've said—it's usually best to put those arrangements in a written separation agreement.

The rules for marriage and divorce are a matter of state law, and states have different rules for separations and separation agreements. But there are some basic principles to understand when you're dealing with a separation and working out an agreement.

What's the Difference Between Divorce, Separation, and Legal Separation?

There are different types of separation, but none of them are the same as divorce. Until you get a final divorce judgment from your state's courts, you will still be legally married to your spouse. Among other things, that means you may not get married to anyone else. Short of a divorce, however, the type of separation you choose (or are allowed to choose in your state) could affect some of your other legal rights. For instance:

  • Trial separation is an informal arrangement that doesn't change anything legally between spouses, including their responsibilities toward each other and their children.
  • Legal separation typically involves a court proceeding similar to divorce, in that you need to go through various steps and get a final separation order (or "decree") signed by a judge. But legal separation isn't available in all states, and some states use different terms for proceedings that are essentially the same as legal separation (such as "divorce from bed and board" in New Jersey and "limited divorce" in Maryland). Even though legal separation doesn't end the marriage, the court's decree—which could include the spouses' separation agreement, if they have one—will deal with many of the same issues involved in a divorce (more on that below).
  • Permanent separation doesn't involve the court even though the spouses have no intention of getting back together. Depending on the state, however, it might affect their property rights.

Many states require that spouses live separate and apart for a period of time before they can get divorced, but not all of those states require or recognize legal separation. (Learn more about the legal and practical consequences of different types of separation and divorce, as well as state laws on separation.)

You can have a separation agreement for any type of separation from your spouse—even while your divorce case is working its way through the court system.

What Should a Separation Agreement Include?

Your separation agreement should include provisions specific to your needs. For example:

  • If you have minor children, you'll need to include provisions for the payment of child support while you're separated, along with detailed custody arrangements and a parenting schedule.
  • If you and your spouse have marital property or took on debt during your marriage, your separation agreement should address your respective rights and responsibilities regarding those assets and debts. For instance, who will make payments on which debts during the separation? Will one of you stay in the family home? If so, who will be responsible for any mortgage payments, repairs, and utilities—and how will those payments affect each spouse's interest in the property?
  • If one of you needs financial assistance to continue living a lifestyle similar to what you had when you were living together, you might need to consider whether one spouse will pay the other spousal support during the separation, and if so, how much.

As appropriate for your situation, you might also want to address other issues, such as:

  • what you will do with joint bank accounts
  • refinancing marital vehicles or other property
  • insurance benefits, including whether one spouse will remain on the other's plans for the duration of the separation (but note that some insurance plans treat legal separation the same as divorce)
  • which spouse will remain on a rental lease
  • listing specific property that belongs solely to one spouse (separate property), and
  • the date the separation will end, if any.

In order to be a valid, binding agreement (meaning that you could go to court to enforce it, if necessary), both spouses must sign the separation agreement. Some states require that the signatures be notarized.

If you're preparing the agreement in order to get a legal separation, you should make sure that it meets the requirements in your state. In order to have the agreement included in the legal separation judgment, you will generally need to submit it to the court with your paperwork and have a judge approve it.

You won't need any court involvement with your agreement if you aren't seeking a legal separation. However, it's worth pointing out that a separation agreement often lays the groundwork for a marital settlement agreement (MSA) when a couple is getting a divorce. So it makes sense to come to an agreement with your spouse—if possible—about all of the details that an MSA needs to include.

Can You Make Your Own Separation Agreement, or Do You Need a Lawyer?

You and your can spouse always have the option of writing your own separation agreement, without outside help. But there are often circumstances where you could use help from a professional. For instance:

  • If you're having trouble agreeing about one or more issues, a mediator can help. Just as with divorce mediation, a trained, neutral mediator will guide you and your spouse through the process of negotiating and finding solutions to your separation disputes. Also, most mediators will prepare a written document that reflects any agreements you've reached during the process.
  • If you have complex finances or other tricky issues to address during your separation, you and your spouse might each need legal advice from a family lawyer or financial expert. Even when you go to mediation, you could consult with an attorney during or in preparation for the process. Once you've come up with a draft settlement agreement, it's often a good idea to have a lawyer review the document to make sure it will meet your needs, protect your legal interests, and—when appropriate—meet your state's requirements for a legal separation.

It's worth pointing out that despite the cost of mediators and lawyers, getting their help with a separation agreement could save you a money down the road. If you want to get a legal separation (when allowed in your state) but don't have an agreement, you could end up spending a lot more in attorney's fees for the legal battles. Also, if and when you do move ahead with a divorce, a solid, comprehensive separation agreement will make it easier to come up with an MSA. Then you can proceed with an uncontested divorce—which significantly lowers the typical cost of divorce.

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