1. What is a ‘legal separation’? What does a Separation Agreement do?
A Separation Agreement is a legally binding agreement between you and your spouse that covers the period of time from when you separate until the time that the divorce is made final. It is a document that outlines the terms of the couple’s separation and, generally, resolves all issues relating to child custody, child support, division of property, and alimony. To be valid, a separation agreement must be in writing and signed by both parties.
2. Do I need a lawyer for a separation agreement?
The law does not require a person to have a lawyer to create a separation agreement. Some spouses, citing expense, consider creating their own separation agreement without a lawyer. Other spouses believe that a lawyer only serves to escalate the ongoing hostilities that are present in such an emotional decision as a divorce, and some just prefer to handle such personal arrangements as divorce, custody, support, and property settlement themselves. Lawyers, however, usually do a better job of handling these matters. They should be familiar with the law and the rules of divorce procedure. They may “know the judge,” that is, be familiar with the judge’s rulings, and know the best approach. They also may be able to shield their clients from their own anger in the proceedings. It is a rare person who can keep emotion and personal concerns out of an argument as basic as divorce and finance. Judges will see this anger and resentment, which could prove detrimental to the person representing himself or herself. In this way, lawyers often serve to prevent the escalation of hostilities and produce better results in a more productive fashion. Separation agreements can be quite complex, as you might imagine. If you do decide to draft your own separation agreement, it’s essential that you understand what can and cannot be included in such an agreement. It is also wise to be familiar with the format and language of the agreement so as to satisfy the judge. It is therefore prudent to seek examples to reference.
3. Why should we use a separation agreement? Do we have to?
No, but if you don’t have a separation agreement or some other kind of agreement, the judge will have to hold a hearing relative to your issues (property, debt, alimony, child support, child custody, visitation, insurance, tax and etc.). This can be long, involved, and time-consuming. Judges actually prefer that couples enter into agreements. If you do not have an agreement, it will make the judge do more work.
Be aware, also, that a freely negotiated agreement can specify conditions that a judge cannot. It is your relationship and no one else knows it better, so why let a judge make the decisions?
Every situation is unique. You need the advise of a skilled attorney who is experienced and understands the law to advise and guide you through this legal process. Please feel free to contact our office for a free consultation at (501) 296-9999.