When spouses decide to separate, there is often a desire to settle all or certain issues outside of litigation. In these circumstances, the parties can execute a Separation Agreement settling the issues incident to their separation and divorce.
Separation Agreements between spouses must be in writing and must be executed by the parties in front of a notary in order to be valid. These are the two most basic requirements of such agreements. There are many other requirements, including disclosure of information, timing of the signing of such agreements, and the inclusion of certain provisions. It is important to have a separation agreement drafted (or at the very least, reviewed) by an attorney experienced in this area of law. Also, when parties enter into a Separation Agreement, they should decide prior to it’s execution as to whether it will be incorporated into their Judgment of Divorce, making it an Order of the Court. If this is not included in the Separation Agreement, it can create an issue later with regard to its incorporation.
While Separation Agreements are appropriate to settle some claims, they may not be the best way to settle all claims. Separation Agreements which are not incorporated into Divorce Judgements are contracts between the parties, and therefore, they are not enforceable through a contempt action nor are they modifiable through the courts. Additionally, child custody and child support provisions which are included in an unincorporated Separation Agreement do not prevent either party from filing for Child Custody and/or Support through the court, and the court will make an initial determination on these issues, rather than considering it a modification (although the separation agreement can be considered by the court as to what the parties deemed appropriate through agreement at the time the Separation Agreement was signed).
Separation Agreements which are not incorporated into a Divorce Judgment are enforceable as a contract between the parties. You can read more about the Enforcement of Separation Agreements here.
If you are considering a separation, or if you are recently separated, it is important to speak with an attorney who can help guide you through the process and make sure that your Separation Agreement is done correctly for enforceability.