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When you and your spouse agree to legally separate, you can use a Marriage Separation Agreement to settle how your property, assets, debts and child custody are handled. We'll walk you through creating a Marriage Separation Agreement so you can move ahead.
IMPORTANT: Residents of South Dakota and North Carolina should not use this form, as these states do not recognize legal separations.
Use a Marriage Separation Agreement if:
You and your spouse have decided to legally separate and agree on how to divide your property and assets.
You and your spouse are considering a divorce and would like to legally separate prior to a final decision on ending your marriage.
You are contemplating a legal separation and would like to set preliminary terms for a division of your property.
You plan to meet with an attorney regarding a legal separation and would like to be prepared with an outline for the division of property and assets.
Marriage Separation Agreement versus Filing for Divorce:
Once a Divorce is finalized by the court (usually when the court issues a Divorce Decree) the marriage is terminated. However, with a Marriage Separation Agreement, even if it is legally binding, you will still be legally married.
The following are common reasons for seeking a Separation instead of a Divorce:
A couple may not be emotionally ready for a Divorce;
A couple may not want to live together but do not want a Divorce;
A couple may want to retain medical insurance, governmental or tax benefits that may continue because the couple is still considered to be married although living separate lives;
A couple resides in a state that requires a separation period before the couple may file for Divorce;
If you are going to pay spousal support during separation, having a Legal Marriage Separation Agreement is required in order to deduct these payments on your tax return;
A couple wants to finalize separation of property and finances and other terms before starting a divorce proceeding.
Please note that choosing to have a legally binding Marriage Separation Agreement is not necessarily faster or less expensive than filing for a Divorce. You may want to consult with an attorney to help you assess your options.
Scope of a Marriage Separation Agreement:
A Marriage Separation Agreement includes many of the same terms as a Divorce Decree, including the following:
Who will retain possession and use of marital home;
How will expenses of the marital home--rent or mortgage, utilities, maintenance, etc.--be divided during legal separation;
If legal separation is converted to a Divorce who will pay for the expenses of the marital home;
How will assets acquired during the marriage be divided during the Separation including rental property, financial and retirement accounts, vehicles, insurance, property, debts, and business or corporate interests.
The terms, if any of spousal support. Alimony is common in marriages lasting 10 or more years. Oftentimes, the courts seek to have both spouses maintain a similar lifestyle to what they were accustomed to before the Legal Separation. All sources of income should be listed. This includes employment, retirement, rental, disability, and government income.
Whether or not spousal benefits, such as medical insurance, will continue during the Separation and who will pay for them;
The terms of child support, custody and visitation rights.
Signing the Marital Separation Agreement:
Both parties must sign the Agreement in front of a notary public. Each spouse should retain a copy of the signed agreement. You may access a copy of the unsigned copy of your Agreement on Rocket Lawyer indefinitely. If you would like to have a copy of the signed Agreement on Rocket Lawyer simply scan and upload it.
Legal Enforceability of Marriage Separation Agreement:
Whether a Marriage Separation Agreements is legal binding depends on the laws of the state in which you lived during the marriage. Most states recognize Legal Separation Agreements. There are 7 states that do not, including, Delaware, Florida, Georgia, Idaho, Mississippi, Pennsylvania and Texas.
Some states require that you file your Marriage Separation Agreement with the court seeking legal approval of its terms in order for the Agreement to be enforceable. For example, in Community Property states, Community Property rights cannot be severed or divided unless adjudicated by a court. In other words, your Agreement is not enforceable until the judge issues a Court Order. Other states, do not do not require that you file your Agreement with the court; instead, the Agreement is a binding contract between the parties.
Other family documents:
Depending on your situation, one of the following may be the right document to create next:
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Copyright 2015 Rocket Lawyer Incorporated. Rocket Lawyer provides information and software only. Rocket Lawyer is not a "lawyer referral service" and does not provide legal advice or participate in any legal representation. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. For legal advice, please contact an attorney. Use of RocketLawyer.com and RocketLawyer On Call® is subject to our Terms and Conditions and the On Call Terms of Service.
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