How to Prepare a Legal Separation Agreement

• What is a legal separation agreement?
• Who should get a legal separation?
• Preparing a legal separation agreement
• Signing and notarizing a legal separation agreement
• Getting help from Hello Divorce
• References

If you want to live separately from your spouse but aren’t sure if divorce is right for you, legal separation might be appropriate. A legal separation agreement outlines the specifics of this separation.

This binding contract details what’s yours, what’s not, and how much one party might pay the other during the separation. It takes ambiguity out of a split since all details are spelled out clearly in a legal document. 

You and your spouse might decide to separate, and this might initially be informal. You simply take some space, live apart, and assess things. But a legal separation means you’ve made your separation formal through the court.

Both a separation and a divorce give parties space from each other, but a legal separation maintains the marriage while a divorce ends it. However, a legal separation agreement will include many of the specifics that might be included in a divorce judgment, such as division of property, spousal support, and child custody.

What is a legal separation agreement?

A legal separation agreement is a binding contract between two married people who want to split up but not divorce. 

An agreement is different from a state-sanctioned form you fill out and file with the court system. It is a document you craft with your partner, sign, and notarize. In some states, the courts never get involved in these agreements unless the parties disagree later and file cases for relief. 

Some separation agreements are temporary. People use these documents to protect their assets as they prepare for an eventual divorce or reconciliation.

Other separation agreements are permanent. People craft them with provisions that will last a lifetime. 

Who should get a legal separation?

The following are reasons people often cite when explaining why they want to separate:

State laws mandate divorce delays

Many states require that people wait weeks or even months between declaring an intent to divorce and getting their final documents. These waiting periods can put people in legal limbo. For some, a separation agreement is an appealing alternative.

A temporary separation allows you to specify where your child will live, who might pay the bills, who keeps the house, and other core issues while you settle your divorce and wait out the clock. Sometimes, it’s the best way to protect your assets in the short term as you prepare for the long term. 

Reconciliation is possible

Some people need space to work on their marriage before declaring it’s truly over. But a long split can come with perils. Your spouse could sell your home, run up your credit cards, or otherwise make decisions that impact your future. A legal separation agreement offers protection while you assess the relationship and make decisions about your future together. 

Divorce is too expensive

The median cost of a divorce in the United States is $7,000. For some families, that’s just too much money. If you can’t afford a traditional divorce spearheaded by a lawyer, and you’re not comfortable using a DIY approach, a legal separation could be wise. 

With a legal separation agreement in place, you’re still married. You can’t find someone new and become that person’s spouse. But you can tackle all of the questions required in a divorce and tap into similar protections. If money is an issue, a separation could be helpful. 

Your children are your priority

You’re not required to set up a new household when you’re separated. You can retain close contact with your partner and share childcare duties equally. You can also maintain daily contact with your child as a separated parent, so you don’t miss a moment that is important for you and your child.

In 2022, more than 40% of family households in the United States had children younger than 18 years old. If you live in a home with kids, a legal separation could define your parental roles very clearly.

Religious traditions ban divorce 

Some religious communities frown on divorce. In fact, some communities consider a marriage after divorce to be adultery, as the first union can never be dissolved. While you may not be able to get divorced and retain your membership in these faith traditions, you can be separated. 

Preparing a legal separation agreement 

Your contract should outline all of your arrangements for your estate. Whether you intend for your separation to last just a few months or the rest of your life, you must settle common questions and ensure you have clearly defined plans. 

These are the issues that you must settle with your spouse and include in your legal separation document:

Personal details 

Your legal separation should include your legal names, the date of your marriage, the start date of your break, and whether your split is temporary or permanent. Pay close attention to this data. Make a mistake, and your document could be harder to enforce later. 

Shared children 

If your children are younger than 18 years old, you must settle physical custody questions. Will the kids live with one parent most of the time? Will all of you live together instead? Will the kids move between households equally? 

If one parent maintains a household for the children the majority of the time, that person is the custodial parent. 

If you assign primary custody to one parent, when will the non-custodial parent see the children? How will you handle holidays, school breaks, and weekends? A detailed visitation schedule can settle these issues, and it’s worth the effort to nail down all the details at this phase.

Children are expensive, and if you live apart, one parent should provide regular child support payments. The non-custodial parent may provide health insurance, too; it depends on the situation. All of these arrangements should be outlined in your documents. 

Spousal support

If your marriage lasted decades and there’s a large income discrepancy between you, spousal support may be reasonable. In this situation, the higher-earning spouse makes payments to help the other party prepare for the job market or make other adjustments. 

Your agreement should outline how much these payments should be and how long they will last. The agreement may also stipulate which circumstances could potentially alter these payments.

Marital home

For many families, the marital home is the largest shared asset. Splitting it could involve the following:

• Selling the home and sharing the proceeds
• One party buying out the other party’s share of the home
• Refinancing the home with both parties listed independently (rather than as a couple) and changing the home’s title accordingly 

Be as specific about your plans as possible. You might detail how much one person will contribute to home repairs, for example, or how you’ll split hidden fees like closing costs. 

Suggested: Calculating a House Buyout in Divorce

Other assets

Everything you purchased during the marriage could be considered marital property in your state. A strong legal separation agreement will list the items both parties will take in the separation, such as cars, computers, furniture, and appliances. 

Shared debts

Just as you must split the items you owe, you should separate the funds you owe. All account balances from things like credit cards, home loans, and personal loans should be detailed with an owner clearly listed for each. 

Signing and notarizing the legal separation agreement 

Once you’ve filled out your legal separation agreement, you must prove that you’re willing to abide by it. Do so by finding a notary public and signing the document in that person’s presence. 

In states like New York, you can file your legal separation agreement with the court just as you would any other contract or legal arrangement. But you’re not always required to do so. 

Remember to keep your signed agreement in a secure spot (such as a safe) so you can refer to it when you need to. If your spouse doesn’t abide by the agreement, you can use this document to fight for your rights in court.

Getting help from Hello Divorce

At Hello Divorce, we help couples with more than just divorce. If you’re pondering a separation from your spouse, legal or otherwise, you may wish to get advice from a knowledgeable attorney about your separation agreement and other details. We offer legal coaching with an attorney who can answer your questions and advise you; this service is available in time increments as short as 30 minutes.

To learn more about our offerings, we invite you to schedule a free 15-minute phone conversation with one of our account coordinators.

References