A separation agreement refers to a contract made between two partners contemplating to end their relationship. For a separation agreement to be enforceable, it must be between two people who previously cohabited. The two partners should now be living apart. The parties to a separation arrangement need to also be mentally sound, 18 years and above, and capable of entering into a contract. A legally valid separation contract needs to be in writing and signed by the involved parties in the presence of witnesses. Here are some of the frequently asked questions about separation agreements and how a lawyer can help with this type of contract.
How Does a Separation Agreement Differ From a Prenuptial Agreement?
Many people wrongly use separation agreements interchangeably with prenuptial contracts. The truth is, a prenuptial agreement is different from a separation agreement in the sense that it is created prior to a weeding and is used to govern spouses during and after their marriage. It lays down the duties and rights of spouses as implied or expressed by the law.
A separation agreement on the other hand is a postnuptial agreement. It is entered into when partners are contemplating a divorce. The agreement basically lays out what the terms of a separation and later divorce are going to be.
What Are the Provisions in a Separation Agreement?
Separation agreements cover provisions regarding entitlements, estate distributions, living requirements, child support, maintenance, distribution of separate and marital assets, child provisions, and child custody. In this contract, spouses negotiate and can include any provision.
Does a Separation Agreement Eliminate the Need to Go to Court?
While a separation agreement is entered into to avoid the costly and long court process, the contract must still be approved in court. The agreement needs to be presented to court at the hearing. The court will question the spouses and take any evidence and testimony into consideration before approving all or some of the terms set out in the separation contract.
The main reason these agreements pass through a court process is for the judge to ensure that the contract is not made based on duress or fraud. Furthermore, where there is a child involved, a court process ensures that the best interests of the child are represented in the agreement.
Under What Circumstances Can the Court Set Aside or Vary the Agreement?
A court will set aside the provisions of the contract or the entire contract if:
One of the spouses failed to disclose significant debts or assets that were present during the time the agreement was made
· One of the spouses did not fully understand the consequences or nature of the agreement
· Where terms of contract law have been undermined or overlooked
How Can You Get Divorced Based on A Separation Agreement?
There are two popular ways spouses can get a divorce through a separation agreement. The first way is known as the conversion divorce. In this case, a spouse can ask for a divorce if they have complied with the conditions of a separation contract for one year or more. In this case, a spouse has to wait for one year after the agreement has been entered into before suing for divorce.
The second way of getting a divorce based on the separation contract is through the no-fault divorce concept. According to this concept, a marriage has to be irretrievably broken for six months and over. The six month window does not start from the moment you enter into a separation agreement, instead, it begins from the time the marriage was irretrievably broken. This means spouses can pursue a divorce action after the separation agreement is signed.
How Can a Lawyer Help With Separation Agreements?
Help Spouses Make Informed Decisions
One of the reasons the court can choose to set aside a separation agreement is when they find that one of the spouses did not understand the terms of the contract. Separation agreement lawyers help couples understand the consequences of contracts they enter into thus enabling them to make informed decisions.
Drafting the Terms of the Agreement
While many spouses may choose to download separation templates and make agreements on their own, where complex issues are involved, it is important to hire a lawyer. In high net worth divorces, the stakes are high because the assets and liabilities involved are worth a fortune. High net worth couples should avoid getting any aspect of a separation agreement wrong. Hiring a lawyer to draft a separation agreement will ensure that every significant object has been addressed.
Summing It Up
A separation agreement helps couples resolve pertinent issues and proceed to a divorce in an amicable way. While this contract is necessary to avoid a long and expensive court process, the agreement has to go through court for approval. The presence of an attorney during the drafting and signing of separation contracts is important in ensuring that all the terms and conditions set out in the agreement are fair and in the best interests of all the parties involved.