Separation is a difficult situation, both financially and emotionally. It may, or may not, lead to one spouse or partner filing a legal proceeding to dissolve the relationship and address the parties’ financial and custodial rights and obligations. Whether or not there is litigation, the parties commonly have issues regarding dividing property and obligations, a party’s need for support, and their relationship with their children. Although there is no legal need for a formal legal agreement at the time of separation, creating a formal agreement at the time of separation can be productive and helpful process for you and your family. This contract should consider what is important to you both, like division of your assets, custody of your children, and support and maintenance.
What is Legal Separation?
Legal separation is a formal determination by a court that you and your spouse have separated from one another but stops short of divorce. In the legal separation proceeding, the court will address all the issues that would be addressed in a divorce proceeding, but unlike a divorce, the parties remain married. Legal separation is typically used where a spouse does not want to divorce for religious reasons or where preserving the marriage is financially advantageous, as might happen where one spouse has serious health issues and keeping that spouse on the other spouse’s health insurance is cheaper than having a new insurance policy for the disabled spouse.
What is a Separation Agreement?
A separation agreement is a written contract determining the division of property and assets, child custody and support, and spousal maintenance. You can draft a marital separation agreement before or after filing for divorce or while you are still living with your spouse. The agreement does not have to be filed with the court to be effective. A separation agreement can be used to address specific issues in the separation process, such as visitation rights or who pays specific bills, or it can be a comprehensive agreement similar to a marital settlement agreement that becomes part of the judgment in the court proceeding.
If you have a formal premarital or post-marital agreement, some rights and obligations on separation may already be the subject of an agreement. Those previous agreements should be reviewed prior to creating a separation agreement. The existence of those prior agreements does not prevent the parties from changing their terms in the separation agreement. However, it can cause a problem if a court becomes involved and the separation agreement conflicts with the parties’ prior agreements.
When and if you file for divorce or legal separation, the separation agreement (and any other written agreements between the parties) may be used in your case to establish your rights and duties. However, until you take steps to make the terms of an agreement into court orders, the separation agreement simply remains a contract between you and your spouse.
Unlike premarital agreements, there is no legal requirement that either or both parties be represented by an attorney in creating a separation agreement. However, consulting an attorney on your rights and obligations in a divorce or legal separation is generally advisable before or early in the process. Having your own attorney can also be helpful where you are having trouble trusting your soon to be ex, where you are not as sophisticated about legal or financial issues as your spouse, where you want to protect your separate property, where you have substantial doubts about your spouse’s ability to be an effective parent, or where your spouse has been abusive with you or your children. An attorney can also be helpful in drafting an effective agreement.
What Should Be Included in the Agreement?
A separation agreement includes various issues relevant to your separation, including:
Distribution of Assets
Before drafting an agreement, you and your spouse need to review your separate and joint assets; then discuss how to split what you accumulated during your marriage. This includes dividing all assets, including retirement accounts, pensions, and the family home. Additionally, you’ll need to address debts, including mortgages, educational loans, credit card debts, and car loans. In California, if either party came into the marriage with assets, has received assets by gift or inheritance during marriage, or will be receiving compensation in the future for work performed during marriage, then you need to discuss the “character” of those assets as community or separate property.
Child Custody, Visitation, and Support
If there are minor children of the marriage, there must be a discussion about custody, visitation, and support. These are often the most difficult and emotional aspects of a separation. Custody concerns the power to make decisions for the children, such as where they live, where they go to school, and how to take care of their heath. Custody may be shared jointly by the parents, but there are circumstances in which it is appropriate that one parent have sole custody. In either case, the parents can devise a visitation schedule addressing when each parent has the children in their care, transportation of the children between the parents’ homes, and holiday rotations.
Child support must also be discussed. Even if you agree to joint custody, child support payments are frequently required to ensure your children’s needs are being met. Additionally, there are expenses for childcare and extracurricular activities such as dance lessons, sports, or private education.
However, be aware that in California the court is not bound by the parents’ agreements on custodial or support issues. The court can change custody arrangements that it determines are not in the children’s best interest and can change support agreements that do not comply with California law governing child support.
Spousal support provides financial assistance when there is a disparity in the spouses’ income. If the spouses cannot agree on the maintenance amount it will be set by the court. However, unlike child support, the court is generally bound by agreements between the spouses as to the amount and duration of spousal support.
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The Family Law Attorneys at Di Maria & Cone have been serving clients in the Palo Alto and San Francisco Bay Area since 1946. Whatever unique family law needs you may have we will advocate for you during all stages of your case. Please visit our website or call us at (650) 321-4460 to schedule your free consultation today.