There are several hefty decisions that must be made when a couple chooses to separate. They’ll generally need to agree on how to divide finances, property, assets, custody of pets or children, and more. Figuring all of this out can be a tedious process—made all the more difficult by existing tension in the relationship.
That’s why having a written Separation Agreement is so important when smoothing out the kinks of a separation. It clearly outlines the expectations of each partner, so they can focus on what they need to during their time apart.
Here are three common questions that come up when discussing separation.
1. When is a Lawyer’s Presence Required?
A lawyer’s presence is not required to draft a Separation Agreement. However, if the couple cannot agree on the terms, then it may be best for each person to seek separate legal advice.
Once the document is drafted (and before it’s signed), it is strongly recommended each spouse consult with their own lawyer. In fact, some jurisdictions actually require this be done. Consulting an attorney ensures the Separation Agreement is fair and the couple understands their rights and obligations under the agreement.
If you plan to create your document without a lawyer, be sure to learn all of your legal rights when separating, which can vary depending on your relationship (married or common-law, with or without children) and location. Also, keep in mind that not all states recognize legal separation.
In most states, the presence of a lawyer or notary public is required when signing a Separation Agreement that deals with real estate, such as the family home. Many states require this because land is valuable and a change in title is a legally significant process.
Additionally, an agreement signed in front of a lawyer and one or two witnesses is easier to uphold in court because there is proof the document was signed willingly by each party in question.
2. How Should Support Payments be Calculated?
During a separation, one partner may be obligated to pay for child or spousal support to cover the cost of living or to allow the other partner to maintain a certain quality of life until independence is fully achieved. When calculating support payments, it’s best to follow the same guidelines that would be used in court (which can vary by location).
Child Support Guidelines
The Income Shares Model is the most common child support model in the US and is based on the idea that both parents pool their incomes for the benefit of the whole family. In this case, child support is calculated from each person’s percentage of the combined income.
For instance, let’s suppose Parent A earns $2000/month and Parent B earns $4000/month, so their total income is $6000/month. Let’s also imagine child care costs them $500/month.
Because Parent A contributes one third (33.33%) to the total monthly income, Parent A would also contribute the same share to child care expenses (about $166.66).
Alternatively, because Parent B contributes two thirds (66.66%) of the total income, Parent B should pay about $333.33 in child support.
Child support can be calculated in different ways, so be sure to research how things are done where you live.
Spousal Support Guidelines
Spousal support, or alimony, can be a temporary situation used to level the economic impacts of a separation. It can also be a more permanent obligation (until death or remarriage of the recipient), but permanent alimony is less common.
Many factors contribute to spousal support calculations, and these factors can vary by state.
Generally, these relationship factors should be considered when determining eligibility for alimony, the amount to be paid, and the duration of the payments:
- Length of the marriage
- The couple’s established standard of living during the marriage
- The length of time needed for self-sufficiency
- Age, health, and financial situation of the spouses
In addition, factors regarding each spouse’s earning capacity must also be considered:
- Employment and earnings history
- Education history
- Work qualifications, skills, and training
- Job opportunities and earning levels in the community
Spousal support is granted so both people can continue to enjoy the same standard of living as when they were married. Remember to check your eligibility before demanding or awarding payments.
3. Does Separation Have to Lead to Divorce?
For whatever reasons, a couple may decide that taking some time apart is the best thing for their relationship. Many people see this as the first step towards divorce, but this doesn’t always have to be the end result.
A Separation Agreement can be an option for couples to test their true feelings about their relationship and to decide whether or not a divorce is needed.
In some cases, a trial separation can be an opportunity for spouses to step outside of their family responsibilities and focus on personal growth, which can sometimes lead to reconciliation.
Living separately for a while can help each partner fully realize their wants, needs and expectations in the relationship; emotional and physical distance can help you separate your partner’s issues from your own.
The time apart could prove that the couple truly does miss being together. Plus, scheduling quality time together during the separation can foster a new relationship of love and respect for each other. This kind of a separation is sometimes called a controlled separation and can be successful when implemented properly.
Alternatively, the separation could prove each partner feels better off on their own. In the end, the separation is what you make of it.
Of course, separation does come with certain relationship expectations, so it’s best to be clear about these expectations from the beginning.
Planning a Separation
People sometimes choose separation over divorce so they may continue to share health care benefits, file joint tax returns, or simply because religious beliefs prevent them from divorcing. It can also help people to make up their minds about divorce.
If you’re thinking about separating from your partner, having a written Separation Agreement can save you time, money, and stress. Expensive lawyer fees and hours of anxiety-ridden debate can be spared if a couple can settle on the terms of the Separation Agreement on their own.