Simple Divorce Papers

A separation agreement is the name for a legally binding contract between spouses intending to separate from each other. It must contain the same elements as any other contract to be enforceable: there must be an exchange of promises, certainty of terms and a clear intent to be legally bound by its terms. To make the agreement easier to prove, it should be in writing, signed by the parties and the signatures should be witnessed.

Some of the most important issues separation agreements can deal with are:

how children are to be raised

who children are to live with and visit and when

who is to pay child support and how much

how property, real estate, pensions, etc. are to be divided

who is to pay spousal support and how much

One thing a separation agreement cannot do is terminate a marriage, this can only be done by a court in granting a divorce.

Any couple who have cohabited, whether married or not, and now wish to live apart may enter into a separation agreement. Agreements which are very similar to separation agreements can be entered into before a couple begins to cohabit, or even while they cohabit and have no intention of splitting up. These are often called prenuptial agreements, marriage contracts, or cohabitation agreements.

There is no prescribed form a separation must take and no prescribed length. Like most other contracts, it becomes legally binding once signed and need not be filed, recorded, or registered with any court or government office in order to be effective. Its contents or even its very existence may remain unknown to everyone but the spouses unless one or both spouses disclose it to others.

However, this does not mean that all separation agreements will be treated the same by the courts. A separation agreement hand-written on a napkin may not be treated seriously by a court, even if it is signed as its appearance may suggest no real intent to be legally bound by its terms. An carefully typed agreement with the signatures of the parties, witnesses and bearing the parties’ seals sends a clear message that legal rights and obligations were intended.

Recent court decisions make it clear that the courts will respect a separation agreement as final in most cases where it appears that the negotiating process and the content of the agreement are fair and generally consistent with the law. However, if changes occur which could not have been foreseen when the agreement was signed, the court may allow a change to the terms later. One of the best ways for spouses to protect themselves against the other spouse changing the terms later is to insist that both spouses obtain independent legal advice before the agreement is signed. The lawyers providing this advice should certify in writing that independent legal advice was provided and these certificates should be attached to the agreement. This does not guarantee that a court will not rewrite the terms in the future but it helps a great deal.

Normally separation agreements have a provision which cancels their legal effect if the couple reconciles. Usually there has to be a resumption of cohabitation for a minimum of 90 days before the agreement expires. This is to allow for trial periods of reconciliation of less than 90 days without spouses worrying that they will need to renegotiate a new separation agreement every time they try to get back together.

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