What is a Separation Agreement?
A Separation Agreement is a legally binding contract between two spouses who are living separate and apart or who plan to separate immediately after executing the Separation Agreement. The purpose of a Separation Agreement is to address and fully resolve all of the existing marital legal issues prior to divorce. A Separation Agreement is not mandatory, but it is a very useful tool to disentangle your joint finances, distribute your property, assets, and debts, and define your legal obligations post-separation. We generally recommend our clients enter into a Separation Agreement during the course of their separation.
Do I need to have a Separation Agreement to be legally separated?
No, the only thing you need to be “legally” separated is for one spouse to move out of the marital residence, with at least one spouse having the intention for separation to be permanent. Staying in separate bedrooms under the same roof is not considered a separation.
What can be included in a Separation Agreement?
A Separation Agreement may address the following issues: Property Settlement, Spousal Support/Alimony (or waiver of the same), Child Support, and Child Custody. Property Settlement, or the division of the marital estate, details and distributes all of the assets and debts acquired during the marriage, which can include:
One question we often get from clients is if the Separation Agreement can include an obligation for the other parent to help pay for a child’s college education. There is no law that absolutely requires a parent to pay for college expenses. In a Separation Agreement or a College Expenses Agreement, however, you and your spouse may choose to agree to pay for a child’s college expenses. Be sure to seek independent legal advice before entering into a Separation Agreement.
Why do I need a Separation Agreement?
The main reasons are fourfold:
Do I need an attorney to draft a Separation Agreement?
Yes, it is best for both you and your spouse to have your own independent legal representation to draft, review, and advise each of you individually before the Separation Agreement is executed.
How do I make sure that my Separation Agreement contract is upheld?
Both parties should have their own separate attorneys to review the Separation Agreement prior to signing and receive independent legal advice for their individual situations. Independent legal representation prevents one spouse from reneging on the contract and saying he or she did not understand the contents of the contract when he or she signed it.
Each party must attest that they have disclosed all marital assets, liabilities, and income, which allows the parties to enter into the Separation Agreement knowing that the entirety of the marital estate is addressed. When both parties have independent counsel, their attorneys can assist with the full financial disclosure to ensure the contract will be upheld.
Both parties must sign the Agreement and their signatures must be notarized.
How soon can I get divorced?
If you are filing for a no-fault divorce, you can file for divorce one year and one day after your date of separation. If filing for a fault-based divorce in South Carolina, you may be able to file for divorce earlier. Signing a Separation Agreement does not change the waiting period for no-fault divorce, but does give you the peace of mind that the complicated logistics of the division of your marital estate have been addressed prior to filing for divorce.
If you choose to enter into a Separation Agreement, you have control of the outcome of your division of marital assets, custody, and child support, when so much feels out of your control during separation and divorce.
Lindsey Dasher is the Managing Partner at Dasher Law PLLC