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23 Aug 16

Is a separation agreement valid if the papers weren’t filed in court?

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Unfortunately, sometimes the marital union becomes fractured and neither party is interested in restoring the connection. Under these circumstances, the first step is usually separation. Some opt to go through the court system to begin the process of separation and eventually dissolving the marriage: while others choose to separate on their own terms and in their own way. However, is a separation agreement that wasn’t filed in court legally binding?

To Involve the Court…or Not?
The process of separation can become a sticky one when two parties decide to draw up their own separation agreement without the help of the court system. Although there are a few things that should be done in cases where a couple decides to bypass the court system, it can be done.

The Process…
Two people who decide to separate need not go through the court system for their separation to be effective and legal. Instead, in most jurisdictions, you simply attach the Marital Separation Agreement to the complaint and have the court merge the documents. If the documents are incorporated the Marital Separation Agreement becomes an enforceable court order. Simply merging the documents with the final judicial decree makes the Marital Separation Agreement a contract between the two people involved, and although it is legal, it is not enforceable.

However, if one of the involved parties violates the terms of the agreement monetary damages can still be sought. However, the only way to legally enforce a Marital Separation Agreement is to have it incorporated into the judicial decree. At that point, the enforceability of the agreement becomes much stronger: nonetheless, even without filing a Marital Separation Agreement in court, it is still effective. You are only limited by how far the court can go to enforce the agreement. Without court action, the enforcement is only the threat of monetary damages.

Variations…
Although court involvement is not necessary for a Marital Separation Agreement, state law determines other factors. “Aseparation agreement is not proof of the parties’ separation. It is a document reciting their promises and agreements. Whether it makes a divorce easier or faster is a matter of state law.”

The law does effectively leave room for a Marital Separation Agreement to be drafted and maintained independently of the court system. However, its enforceability is severely limited, and generally speaking, the only real consequence the violating party faces is the threat of monetary damages. Conversely, when a separation agreement is drafted and incorporated into the judicial decree, it becomes legally enforceable to the full extent. Any violating party can be held in contempt for violating the terms of the agreement. Although a separation agreement doesn’t require legal filing in court and is still valid, you must separately sue the violating party in a separate case to fully enforce the terms of the agreement.

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