Duhaime's Law Dictionary


Separation Agreement Definition:

A private contract between separating spouses resolving issues of joint, family or marital property or assets, support and child responsibilities.

Related Terms: Marriage Agreement, Postnuptial Agreement

A private contract between separating spouses resolving issues of joint, family or marital property or assets, support and child responsibilities.

When spouses decide to end their marriage or lengthy cohabitation, particularly when children have issued from their relationship, the unwinding of what was supposed to be a "until death do we part" contract, can be quite complex. Spouses frequently purchase assets jointly or in circumstances that make it difficult to determine who owns what. Many jurisdictions impose a community of marital property regime between married spouses. Whatever has been acquired during the marriage by either party may belong equally to both.

Spouses generally share child-rearing responsibilities which becomes impractical if they suddenly find themselves living no longer in a single, unified residence, but in two separate residences.

A relationship of economic dependency may have developed, one spouse on the other, often caused by extended parental leave by one of the spouses in order to provide full time household or child-rearing responsibilities to the family, thus sacrificing his or her career.

At the end of the day, it is up to the court to disentangle separating spouses unless they can agree between themselves by separation agreement.

Spouses are at liberty to resolve issues arising as a result of their separation by way of a private contract between themselves, a separation agreement. Litigation is very stressful, expensive in legal fees, public and, worse, the issues are resolved by a stranger to the marriage - a judge, who will impose a resolution based on an adversary justice system, not usually conducive to the peaceful legacy separating parents - and more so their children - desperately require.

Negotiating or the mediation of a separation agreement costs considerably less money than divorce proceedings.

A good family law lawyer will do everything in his or her power to attempt to negotiate or foster the negotiation of a separation agreement on behalf of his client. Sometimes, however, separation agreements are not possible because of the personality of the other lawyer (this actually happens a lot), or the personality of one of the two separated spouses - some people just need their day in court.

In most cases, a properly prepared separation agreement will pre-empt any party's attempt to have an issue that was resolved in the agreement subsequently litigated (lawyers call this an estoppel); unless there has been a substantial change in circumstances which might attract the court's attention do an amendment, especially as regards children or support.

Because separation agreements are essentially contracts, and barring a statute to the contrary in any particular jurisdiction, they do not need to be in writing but given the tinderbox circumstances in which they would probably develop, a verbal separation agreement may not be worth the paper it is written on!

There are do-it-yourself kits available for separation agreements but you would be "penny wise to be pound foolish" to attempt it without the assistance of an experienced and knowledgeable family law lawyer. There are many pitfalls and complex areas in family law such as spousal support and pensions.  An error in properly identifying property rights in a separation agreement, or failing to note the intentional omission in the other party's do-it-yourself draft, could mean a significant financial difference to the trusting but naive spouse, in their old age.

A separation agreement has to be signed by both parties. I once had a client spend a fair amount of money with me developing a separation agreement which I assumed he was going to present to his ex-spouse. When I was done the draft, he was stunned to find out that his ex-spouse had to sign it as well!

You cannot get a divorce by separation agreement: that requires a court order but it is a breeze if all that is left is the actual divorce order.

A well drafted separation agreement will allow for future amendments by either direct written change by both parties or a process of mandatory mediation or, as a final alternative, resort to the courts.

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