A Separation Agreement serves various purposes. First, it can allocate and equitably divide the property of the marital estate, distribute debt, determine child custody, and set appropriate support (child and spousal) amounts specific to your case. Second, it allows you to terminate your marital relationship in a way that offers you greater input over the results. Finally, it helps to reduce substantially the cost of divorce by eliminating the need to go to trial.
It is important to remember that a separation agreement establishes the boundaries within which your post marriage relationship will exist. The more comprehensive your separation agreement is, the less likely there will be a post-divorce conflict requiring litigation. A well-drafted separation agreement will include provisions that address both your present and future needs. Generally speaking, the higher the conflict between the parties to the divorce, the more detailed a separation agreement should be, as one high-conflict party tends to exploit loopholes in poorly drafted separation agreements.
UrbanoLaw is skilled at negotiating and drafting separation agreements (and agreements for judgment between parties with out-of-wedlock children) with the appropriate amount of detail for a given case.
Resolving Contested Issues:
Parties going through a divorce have choices when it comes to resolving the contested issues. Among other things, the parties and their counsel can work constructively together to negotiate a fair and just resolution, the parties can seek mediation by way of a seasoned family law lawyer trained to mediate, or the parties can present their issues to the court during the case and ultimately before the court at trial (there are no jury trials in family law). Usually when you negotiate, you retain more power and control over the decisions that are reached. When you ask the court to step in and resolve your differences, you lose a large amount of control over the outcome, and often the court may reach a decision that disappoints.
Sometimes one or both of the parties have unrealistic expectations and/or lingering emotions that prevent them from being able to reach agreement on the contested issues. Other times, there may be complex property/business valuations or child custody disputes that make reaching agreement impossible. Under these circumstances the parties will have no choice but to present their position to the court and ask the court for a ruling.
Separation Agreement:
A Separation Agreement is crafted by negotiating the contested issues. It forms a contract between the parties. A well-drafted Separation Agreement should contain the following provisions:
- child support;
- child custody;
- alimony;
- parenting time;
- holiday schedules;
- current and future educational costs for the child(ren);
- medical and dental insurance;
- uninsured medical and dental expenses;
- cost-of-living adjustments;
- life insurance policies;
- other expenses of the child(ren) like summer camps and extracurricular activities;
- tax provisions;
- the division of the assets;
- the division of the debts;
- payment of legal fees and costs; and
- any other issues relating to the unique aspects of your case.
Modification:
Once a Separation Agreement is accepted by the court, it becomes final. Absent fraud, the property distributions will rarely be changed after the divorce is finalized. Other provisions, such as alimony, may or may not be modified depending on the wording of the agreement. Sections concerning the children, child support, parenting time and/or child custody are subject to modification if the standard is met. They can be modified by agreement between the parties or by returning to court if there has been a “substantial and material change in circumstances.” Child support can be modified even if no “substantial or material” change in circumstances occurs, but there is a difference in the award provided under the prior child support guidelines worksheet and one prepared later. In addition, other sections of the separation agreement may be modified depending on the language used in the agreement. Sometimes a court may modify a judgment if it finds that there are “countervailing equities,” while at other times the court may modify an agreement if there has been a “material change in the circumstance.”