Marital Separation Agreements

The Marital Separation Agreement

A marital separation agreement, also known as a property settlement agreement, is simply a written contract dividing your property, spelling out your rights, as well as settling problems such as alimony and custody. A marital separation agreement may be drawn before or after you have filed for divorce — even while you and your spouse are still living together.

If you have no marital property, no joint debts, and no children, you probably don't need a marital separation agreement to get a no-fault divorce. However, if you want to provide for the future governance of your relationship, as well as provide additional evidence to the court about the day that you separated, you should have a Marital Separation Agreement. An agreement leaves no doubt about any of the details of the winding up of your marriage relationship. It is better to have written clarity, that the rely on oral understandings about what events will take place in the future

When you initially execute your Marital Separation agreement you do not have to file the Agreement with the Court to be effective. When you begin the divorce proceedings you will, in most jurisdictions, attach the Marital Separation Agreement to the complaint and ask the court to merge, but not incorporate, the Agreement into the final judicial decree. If the Marital Separation Agreement is incorporated into the decree, it becomes a court order and is enforceable by the court's contempt powers. If you don't incorporate it into the decree, it simply becomes a contract between you and your spouse, which you later have to sue in a separate action to enforce. If the separation agreement is not incorporated into the divorce decree, and your spouse violates the agreement you can still seek money damages for the violation of the agreement, but it is easier and faster if the agreement is incorporated into the divorce decree.

A separation agreement is a legal document that will bind you through many years and determine your rights, obligations, and responsibilities from your marriage. You and your spouse can amend the agreement provided you both consent, or it can be modified by an order of the court, provided the agreement does not specifically state that the agreement is not subject to any court modification. Nevertheless, the court can always modify provisions in an agreement regarding the care and custody of any minor children.

In an uncontested divorce, the court nearly always approves the agreement of the parties if it is generally fair and the court is convinced that the agreement was entered into by both spouses with no fraud or coercion. Often the court may want to review financial affidavits attached to the agreement in order to determine its fairness.

In negotiating your agreement, you should be guided by how a court is likely to divide your property, award custody and child support, and deal with other issues, if you cannot reach agreement.

In an "equitable distribution" state the court "equitably divides" the marital property. if you cannot reach agreement. The court normally considers the length of the marriage, age, health, conduct of the parties, occupation, skills and employment of the parties. Equitable division does not mean equal division and seldom is property equally divided. The court will order an approximately equal division of the assets and liabilities when:

• It was a long marriage

• The spouses have nearly equal wealth
before the marriage,

• Both spouses have approximately
equal earning ability.

• There are no minor children,

The court will award more property ( and fewer debts) to the spouse who has:

• Less earning ability

• Less financial contribution to the
marriage if the marriage is a short-term
marriage.

• Poor health or other adverse
circumstances.

• Custody of minor children.

• Marital and Non-Marital Property

In an "equitable distribution" state, all property acquired during the marriage is "marital property" and all property owned before the marriage is "non-marital" property. Gifts or inheritances to either spouse during the marriage is non-marital property.

You can easily create your own Marital Separation Agreement using Rapidocs technology. Marital Separation Agreements are available for every state and the District of Columbia. The fee is $49.95.