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.
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:
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.
Your separation agreement should include provisions specific to your needs. For example:
As appropriate for your situation, you might also want to address other issues, such as:
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.
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:
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.