Preparing a Legal Separation Agreement

Jodee Redmond
Review an agreement carefully before you sign.

The process of preparing a legal separation agreement is best left to a qualified attorney. These documents may be complicated and their content may affect the parties in years to come.

Issues Contained in a Legal Separation Agreement

When a couple's marriage has broken down, they may be able to work out certain issues between themselves. The separation agreement can include the following types of issues:

  • Child support
  • Custody
  • Visitation
  • Alimony
  • Life insurance
  • Medical insurance
  • Division of marital property

Preparing a Legal Separation Agreement: Hire an Attorney

Each person should have their own attorney to work on preparing a legal separation agreement. Acting as your own attorney is not a good idea; you may not be familiar with the law as it applies in your state and splitting marital property can be complicated. In the case of retirement accounts, there are certain very specific rules that need to be followed to avoid having the funds considered as taxable income.

If one person is represented by legal counsel and the other is not, the person who did not have a lawyer may argue later on that the separation agreement should be declared invalid on the grounds they did not have the benefit of independent legal advice.

Once the legal separation agreement has been signed and notarized, a copy of it can be given to the court clerk's office. Each person should receive a copy of the document after it has been certified by the court clerk.

Separation Agreement and the Judgment of Divorce

When a couple who have signed a separation agreement decide to divorce, the terms of the separation agreement usually form the terms listed in the Judgment of Divorce. It's important to understand the terms and conditions in the separation agreement and to speak up if there is something included that you are not happy with. In a situation where you want to be sure you are not necessarily bound by the terms of the legal separation in your final divorce judgment, make sure that the document you sign clearly states this fact.

Advantages of Signing a Legal Separation Agreement

If one person is making alimony payment to the other, he or she can claim these payments as a deduction on a federal income tax return. However, these amounts can only be deducted if the payments are made under the terms of a separation agreement or a court order. In this situation, the individual receiving the payments must include them as income.

Signing the agreement may protect you from being responsible for debts your spouse incurs during the separation. If you live in a separate property state, this will be the case. Couples who live in a community property state don't have this type of legal shield by signing a separation agreement.

Negotiating a Legal Separation Agreement

When you are trying to negotiate a separation agreement with your spouse, the first thing you need to figure out is which issues are non-negotiable as far as you are concerned. These are ones that you don't feel you have any wiggle room with at all, and may involve issues surrounding child custody, visitation, or child support.

Next, consider issues you need to resolve with your spouse where you are prepared to compromise somewhat. If you have a few of them where you are prepared to give in to your spouse's wishes a little, it may make working out the non-negotiable issues a bit easier.

Your spouse will have some issues that he or she is not prepared to budge on, either. Hopefully, they are not the same ones that you feel the same way about. The trick when negotiating is to be prepared to give a little on some issues so that you can get most of what you want.

Getting a Divorce After Signing a Legal Separation Agreement

After a couple negotiates a legal separation agreement, one of them can file for divorce on the grounds that the couple the marriage has broken down and they have separated. A certified copy of the legal separation agreement is filed with the Court along with the divorce documents.

Preparing a Legal Separation Agreement