Separation Agreements

A separation agreement, sometimes called a separation and property settlement or SAPS, is the most common means to divide property and settle other issues in a separation or divorce. A separation agreement is a contract governing the separation of the parties. Separation agreements should be viewed as any other bargained for exchange between parties who are presumably on equal footing, and thus, where a separation agreement is otherwise valid, the trial court is not required to make an independent determination as to whether an agreement is “fair”. The court will rarely look beyond the procedural requirements of the agreement in determining its validity. The court believes that making sure all the procedural safeguards have been fulfilled somehow prevents the parties from overreaching. Indeed, the court has held that the requirements for enforcement of a separation agreement are that they be written, duly executed and acknowledged, insure against fraud and overreaching on the part of one of the spouses. And even the most lop-sided agreement will stand unless the other party can meet the high burden of showing both procedural and substantive unconscionability or can prove fraud.

In other words, if you sign an agreement and it turns out that you had insufficient information, or you misplaced your trust in your former spouse, you will be unable to change the agreement and will be stuck with the terms as stated.

An agreement can be a complete settlement of all issues or it can be specific to some issues only. The agreement can be a division of any and all assets, obligations, rights and liabilities associated with the parties’ marriage to one another and setting forth terms for the custody and support of the children and, if appropriate, alimony; but it can, also, be an agreement regarding property only, or just some of the property, or it can be regarding custody or alimony only. As such it is a flexible document and requires artful drafting. In most cases, you will want to have an agreement that is a final document and includes all issues.

Regardless of what anyone else tells you, a separation agreement is a permanent document and acts as a contract which can be enforced. Do not operate under the mistaken belief that the separation agreement is temporary in nature or subject to change. It is important that you understand that a separation agreement is enforceable as any other contract; if a party breaches the agreement the other party can proceed to court for specific performance or money damages. It is important, also, for you to be aware of the legal and practical realities of your particular situation.

A separation agreement is a permanent agreement which can be changed if both you and your spouse agree, but only if you both agree; so it should not be entered into if it is an agreement you can’t live with. Both the original agreement and any subsequent modification of the original separation agreement must include the required formalities that a separation agreement be in writing and acknowledged by both parties before a certifying officer not party to the contract. A valid separation agreement cannot be set aside or ignored without the appropriate written and notarized consent of both parties.

It is important for the finalized separation agreement to represent and reflect your needs and desires. Regardless of how wonderful the agreement is that we may draft for you, if you had one issue as the most important and it is the one that is left out, you will be unhappy. One of the easiest things for an attorney to do is substitute the attorney’s belief as to the best possible settlement for the client’s. Our job is to advise and counsel our client as to why we believe a certain approach or settlement is best, but it is the client’s ultimate authority to make any decisions as to settlement.

If custody is at issue, we will also need you to provide a custody history and discuss both your best case scenario and bottom line. It is our job as the drafter of a document which will, hopefully, be in use for years to come, to draft an agreement which is clear and unambiguous. While many people feel it is good to leave matters flexible and subject to mutual agreement, it is best not leave matters open to chance or negotiation. While it is possible that you and your former spouse will be able to handle all future custodial matters with maturity and understanding, it is more probable that there will be times that tempers will flare or questions will arise. Having an agreement that allows flexibility while setting out a default provision in the event that parties cannot agree will help you get over those inevitable problems which arise when any couple shares the responsibility of raising children.

Similarly, child support set out in an agreement is always open to modification because the court looks at the right to child support as the child’s rights not the parents’ rights and the child’s rights cannot be contracted away. Nor is the duty to pay support subject to a “set off” if the other party does not comply with that party’s obligations as stated in the agreement. The duty of a parent to pay child support as agreed to in separation agreement will not be excused because the other parent did not comply with other provisions of the agreement unrelated to the children’s financial support. While the amount of child support agreed on by the parties to a separation agreement is presumed, in the absence of contrary evidence, to be just and reasonable, it remains within the authority of the courts to order payments for support in such an amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case. However, if child support is set forth in a separation agreement a rebutable presumption arises that the amount set forth is just and reasonable and, therefore, application of the guidelines would be inappropriate. Accordingly, before it applies the child support guidelines, the trial court must first consider the child support allowances in a separation agreement between the parties.

An agreement differs from a court order for alimony in that a court order can be modified upon a change of circumstances, but an agreement is not modifiable absent a mutual agreement. Many people like the finality of an agreement, it allows parties to plan ahead and know the amount and duration of any support. An agreement can, and usually does, set out terminating events such as remarriage, living with someone in a marital like relationship, or the termination of a certain amount of payments or years of payment. The agreement can, also, set out events which may affect the amount of support such as disability or termination of employment without fault, or unexpected significant loss of income. If the agreement is silent on any terminating or modifying events, then the support will continue.

And finally, an agreement is based on the available information. However, you know your spouse better than your attorney does. If you do not believe that the opposing party is telling the truth or you believe that something is hidden, then perhaps an agreement is not the best way to settle your matter.

And some final Do Nots:

Do not underestimate the need to be equally prepared for negotiations for an agreement as for court. Being able to back up settlement offers with facts will lend credence to any position. Amorphous statements that “My client hopes to return to college” are nowhere near as persuasive as “My client has made inquiries as to the teaching program and has determined that she needs 29 credits which she can earn in 2 years if she attends school full time and then she needs an additional year to obtain employment and stabilize her job situation.”

Do not forget that there are at least two parties to this action. Do not be afraid to compromise. Entering an agreement is not the time to show your ability to dig in your heels and win at all cost. Conversely, do not agree on something just because the opposing party refuses to compromise or because you “just want it over with.” An agreement is something that both sides must agree upon and which is the foundation for the remainder of your relationship.

The final distribution of property and entry of the absolute divorce may be the end of your legal relationship, but if there are children, or there is ongoing support, or there are other people you will continue to share as colleagues or friends, then the entry into the separation agreement is not the final act you and your spouse will have towards one another.