Separation Agreement Definition
A separation agreement is the legal form that defines the terms under which a married couple establishes separate living arrangements. There are several reasons for drawing up a separation agreement. Some may be personal or religious, others financial. Couples will have to decide about whether to seek a legal separation based on their circumstances.
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Components of a Legal Separation
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A legal separation describes the division of property, including the occupation of the family home, between the two spouses during the terms of the separation. If there are minor children, the legal separation also details the custody, visitation and financial support for the children during the term of the separation. If one spouse is to be responsible for the financial support of the other spouse during the separation, called temporary maintenance, those terms also are incorporated.
Separation for Attempted Reconciliation
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Some spouses draw up a separation agreement as a "trial separation" while they attempt to reconcile differences. This circumstance often, but not always, occurs with instances of infidelity. The separation agreement also could include the terms for mediation or marriage counseling.
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Separation for Personal and Religious Reasons
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Some couples decide on a separation agreement rather than a divorce because they no longer want to (or are able to) live with their spouses, but their religious beliefs prohibit divorce. Others wish to remain legally married because they believe that will provide more financial and general stability for minor children.
Separation for Financial Reasons
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Some couples who have been married for close to a decade choose a legal separation so they can qualify for spousal Social Security benefits, for which the requirement is being married for at least 10 years. Others may wish to remain legally married to maintain insurance coverage or to preserve tax advantages.
Separation as a Prelude to Divorce
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Several countries and states within the United States require that couples who seek an uncontested divorce must live "separate and apart" for a specified period of time. A legal separation satisfies that requirement. Others use the separation agreement to settle the division of any assets and settle other legal questions that would otherwise occur during the divorce proceeding.
Misconceptions
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Unless a particular jurisdiction requires a legal separation, a couple may separate without drawing up a legal document. Although a legal separation almost always means that a couple lives separately, some jurisdictions allow a husband and wife to reside together in the family home during a legal separation. Couples should seek legal advice to determine the particular circumstances that apply to them.
On the other hand, a separation, no matter how long in duration, does not equal a divorce. A couple must go through the formal divorce procedure in order to legally dissolve a marriage. While many people who are legally separated feel free to date, and some become engaged, they are not legally free to marry others.
Cautions
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A separation agreement should be drawn up with care, especially if it is a prelude to divorce. Many judges will adhere to the terms of a separation agreement in making a final determination for division of property in granting a divorce. Couples also should review insurance policies carefully if they intend to remain legally married because some policies explicitly suspend or cancel coverage in the case of a marital separation.
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