1. 13
Separation Agreements

2. The Nature and Purpose of Separation Agreements
A separation agreement is an agreement made between spouses in anticipation of divorce or legal separation concerning the terms of the divorce or separation and any continuing obligations of the parties to each other.

3. The Nature and Purpose of Separation Agreements
It is a contract regarding the parties' individual rights and responsibilities primarily with respect to finances, property, and minor children, if any.

4. The Nature and Purpose of Separation Agreements
It may be called, among other options, a separation agreement, a marital agreement, a marital dissolution agreement, or a permanent stipulation of the parties. In several states, it consists of two parts: a parenting plan that covers child related issues and a property settlement agreement that covers all other issues.

5. Characteristics of an Effective Separation Agreement
The agreement is comprehensive.
The terms of the agreement are clearly defined and reflect the parties' intentions.
The terms of the agreement are stated fully so that the parties know what is expected of each of them.

6. Characteristics of an Effective Separation Agreement
Although the parties are free to settle for less than they might be entitled to under the law, the agreement should still be fair and freely entered.

7. How is a Separation Agreement Developed?
In a majority of cases, the parties to a divorce or legal separation reach an agreement with or without the assistance of counsel and/or alternative dispute resolution measures such as mediation and neutral case evaluation.

8. How is a Separation Agreement Developed?
The client must have input and review all proposals communicated to the other party and have an opportunity to consider all counterproposals. The client ultimately controls the agreement in the sense that he or she has the final say with respect to whether or not to accept and agree to certain terms or proceed to trial.

9. How is a Separation Agreement Developed?
The three most common ways in which agreements are developed are the following:
The parties reach an agreement on their own and proceed pro se or give the agreement to their respective attorneys for review and submission to the court.

10. How is a Separation Agreement Developed?
The three most common ways in which agreements are developed are the following:
The parties each retain counsel and review with them their respective goals and bottom line terms.

11. How is a Separation Agreement Developed?
The three most common ways in which agreements are developed are the following:
Financial statements are exchanged, information is gathered through discovery and or informally, and an agreement is negotiated usually through counsel but sometimes with four-way meetings.

12. How is a Separation Agreement Developed?
The three most common ways in which agreements are developed are the following:
One attorney will usually prepare an initial draft for review and successive drafts will be exchanged until agreement is reached.

13. How is a Separation Agreement Developed?
The three most common ways in which agreements are developed are the following:
In more complex or hotly contested cases, drafts will not be prepared until discovery is complete and the parties have a sense of the nature and extent of the marital estate (including liabilities) and the issues regarding minor children.

14. How is a Separation Agreement Developed?
The three most common ways in which agreements are developed are the following:
The attorneys may draft initial proposals outlining their respective client's positions on the various issues.
The parties may participate in mediation and neutral case evaluation.

15. How is a Separation Agreement Developed?
The three most common ways in which agreements are developed are the following:
Areas of agreement are identified and a partial agreement may be reached.
The issues that remain unresolved will be presented to the court for resolution.

16. Most Common Formats for Separation Agreements
The document is usually drafted using one of the following three formats:
A two part format consisting of a main body (containing a recital of pertinent facts and a series of general boilerplate provisions pertaining to disclosure, severability, etc.) and a series of exhibits that are incorporated in the agreement by reference (each addressing a separate topic such as alimony, custody, or division of property)

17. Most Common Formats for Separation Agreements
The document is usually drafted using one of the following three formats:
An integrated document with numbered articles on specific topics following an introductory series of "recitals" of pertinent facts
A format recommended or required in the jurisdiction often provided on court/state-sponsored websites

18. The Paralegal's Role in Preparing a Separation Agreement
The paralegal usually plays an active role in gathering needed information through meetings with the client and formal and informal discovery.
See Paralegal Application 13.1 Information Gathering for Separation Agreements on page 478 of the text.

19. The Paralegal's Role in Preparing a Separation Agreement
The paralegal may participate in meetings with the attorney and the client in which the terms of the agreement are discussed and an outline is prepared

20. The Paralegal's Role in Preparing a Separation Agreement
If warranted, the paralegal researches the law governing separation agreements.
The paralegal researches formats and any jurisdictional requirements.
The paralegal drafts an agreement based on the supervisor's directions.

21. Basic Components of a Separation Agreement in a Two-Part Format
Identification material with respect to the parties
A series of recitals including a statement of the facts such as date and place of the marriage, children's names and ages, living status, etc.

22. Basic Components of a Separation Agreement in a Two-Part Format
General provisions including, for example, mutual releases, waiver of estate claims, acknowledgments (full disclosure, representation by independent counsel, voluntary execution, etc.), binding effect, modification, attorney's fees, governing law, severability, etc.

23. What is the Difference Between a Merged and a Surviving Separation Agreement?
A separation agreement is a contract between the parties that is effective upon signing unless otherwise provided (for example, the terms may provide that the agreement will be effective upon the date of the divorce judgment).

24. What is the Difference Between a Merged and a Surviving Separation Agreement?
When the agreement is presented to the court for review generally at the time of the final hearing, the parties customarily request that it either be incorporated by reference and merged in the court's decree OR that it be incorporated by reference in the decree and not merge but rather continue to retain its independent legal significance as a contract separate and apart from the divorce decree.

25. What is the Difference Between a Merged and a Surviving Separation Agreement?
When an agreement is incorporated and merged in the divorce decree, the decree includes the terms of the agreement making them part of an order of the court and the agreement itself no longer exists as a separate contract. Its terms are then enforceable only by the family court that entered the decree.

26. What is the Difference Between a Merged and a Surviving Separation Agreement?
When an agreement is incorporated in the divorce decree and also survives as an independent contract, the terms of the agreement that are incorporated and made part of the decree are enforceable by the family court. However, because the agreement also continues to exist as a contract with independent legal significance separate from the decree, it is also enforceable in a court of equity.

27. The Court's Role in Separation Agreements
The courts play a variety of roles with respect to separation agreements. The most common include the following:
Reviewing the agreement at the time of the final hearing or trial for possible incorporation in the decree
Modifying the agreement
Enforcing the agreement
Vacating/setting aside the agreement

28. The Court's Role in the Agreement at the Time of Trial or Final Hearing
Even in an uncontested case in which the parties have executed a mutually agreed-upon separation agreement, the court usually holds a brief hearing with both parties present in which it reviews the document and asks questions such as the following:
Have the parties read the agreement, do they understand its terms, have they reviewed it with their own attorney, and have they executed it freely and voluntarily?

29. The Court's Role in the Agreement at the Time of Trial or Final Hearing
Even in an uncontested case in which the parties have executed a mutually agreed-upon separation agreement, the court usually holds a brief hearing with both parties present in which it reviews the document and asks questions such as the following:
What arrangements have been made for the continuation of health insurance?
Do they want the agreement to merge or survive as an independent contract?

30. The Court's Role in the Agreement at the Time of Trial or Final Hearing
Even in an uncontested case in which the parties have executed a mutually agreed-upon separation agreement, the court usually holds a brief hearing with both parties present in which it reviews the document and asks questions such as the following:
What are the conditions for payment of child support? Will it be paid by wage assignment?
Have both parties waived their respective rights to alimony?

31. The Court's Role in the Agreement at the Time of Trial or Final Hearing
When a complete or partial separation agreement is presented for approval, the court generally exercises one of three options:
It may incorporate and merge the terms of the agreement into the decree.

32. The Court's Role in the Agreement at the Time of Trial or Final Hearing
When a complete or partial separation agreement is presented for approval, the court generally exercises one of three options:
It may incorporate the terms of the agreement in its decree including the provision that it will survive as an independent contract (making it a "surviving agreement").

33. The Court's Role in the Agreement at the Time of Trial or Final Hearing
When a complete or partial separation agreement is presented for approval, the court generally exercises one of three options:
It may reject the agreement in whole or part because it violates the law or a strong public policy (such as when party waives all rights to child support).

34. The Court's Role Regarding the Modification of an Agreement
If the agreement is incorporated and merged in the decree, the family court retains the authority to modify it based on a substantial change in circumstances.

35. The Court's Role Regarding the Modification of an Agreement
If the agreement is incorporated but survives as an independent contract, the general rule is that the family court can only modify it in a limited number of circumstances:
If the agreement provides for modification under certain circumstances such as remarriage or cohabitation of one of the parties or a substantial increase or decrease in a party's income, the court can modify the agreement.

36. The Court's Role Regarding the Modification of an Agreement
If the agreement is incorporated but survives as an independent contract, the general rule is that the family court can only modify it in a limited number of circumstances:
The court retains jurisdiction over child-related matters and therefore can modify provisions of the agreement based on a substantial change in circumstances that affects the children's welfare.

37. The Court's Role Regarding the Modification of an Agreement
If the agreement is incorporated but survives as an independent contract, the general rule is that the family court can only modify it in a limited number of circumstances:
If there is a more than substantial change in circumstances such that one of the parties is about to become a public charge, many family courts will order an appropriate modification.

38. The Court's Role in Enforcing or Vacating the Agreement
If the agreement is incorporated and merged in the divorce decree, enforcement is pursued in the family court that issued the decree because the "breach" is a violation of an order of that court. The party seeking to enforce the agreement customarily will file a contempt action or a motion to enforce the judgment.

39. The Court's Role in Enforcing or Vacating the Agreement
If a party seeks to enforce a surviving agreement, he or she can (and usually does) seek enforcement in the family court that issued the decree OR because the agreement survives as a contract with independent legal significance, he or she can pursue contract remedies in a court of equity. For example, the aggrieved party may sue for breach of contract seeking damages or specific enforcement of the agreement.

40. What if a Party Seeks and Obtains a Modification of a Surviving Agreement in a Family Court?
If a party is successful in seeking modification of a surviving agreement by the family court, the other party can seek to enforce the agreement by suing in contract for damages.
For example, if the agreement provided for alimony of $200 and the family court modifies the agreement and orders payment of $400 a month alimony, the aggrieved party can seek to recover in contract the $200 per month difference.

41. Can a Separation Agreement be Vacated?
Decrees issued by trial courts may be appealed to higher courts within the state and may be affirmed or set aside based on an error of law or abuse of discretion.

42. Can a Separation Agreement be Vacated?
After the divorce is "final," a party also may seek (in a new trial or other action) to have the court vacate or set aside the judgment incorporating the agreement. For example, a party may discover after the divorce that despite their best efforts for full disclosure, the other party wrongfully concealed a substantial asset which had it been known at the time of the divorce, the terms of the agreement would have been different.