Separation Agreement for Marriage

Why is it important that you have a Separation Agreement?

A Separation Agreement can be important to have for several reasons. First, it is helpful if you need to provide proof to the court regarding the date you actually separated.  Second, a written Separation Agreement provides for accurate details about the ending of your marriage and how you would like your property divided as well as how you wish to settle issues of child custody, child support, and spousal support. Finally, it is always better to have your agreement in writing for the protection of both parties.

Do I need a lawyer to write a Separation Agreement?

No, couples may draft their own Separation Agreements without the assistance of a lawyer. However, in some situations it may be wise to consult an attorney. For example, you may want to consult an attorney if you have been married for ten or more years, if you or your spouse is a member of the military, if you and your spouse have accumulated a significant number of assets, or if you are unable to reach an agreement on some aspect of your separation. An attorney will be able to explain your rights under the laws of your state.

Do I have to have my Separation Agreement notarized?

The Separation Agreement should be signed by the parties and notarized. In addition, some states require you to have the agreement witnessed. Most banks have a notary and can usually supply witnesses for signing the agreement. The charge is minimal and if you bank with them it is usually free. And of course you can always go to a private notary if you wish. And remember, the documents must be signed in front of a Notary.

Am I required to file a Separation Agreement?

In general, when you execute a marital separation agreement you are not required to file it in court for it to be binding on you and your spouse. However, you should check with your local courthouse about the laws governing Separation Agreements in your state, and how a Separation Agreement may affect a divorce proceeding. The laws and requirements differ from state to state. 

How long will we be obligated by a Separation Agreement?

Separation Agreements are legal agreements that can be enforceable through a number of years, and determines your rights and responsibilities concerning your marriage. Usually the agreement will specify how long it will be in effect and how it can be terminated.

Can we make changes to the Separation Agreement after we sign it?

In general, yes, changes can be made to the Separation Agreement provided that both parties agree and the changes are put in writing. The Separation Agreement can also be changed by a court unless the agreement specifically states that it cannot be changed or modified by a court. Child custody would be the exception as the court always has the power to change sections of the agreement concerning minor children.

Who is responsible for child support?

The noncustodial parent will normally be required to pay child support to the custodial parent, or the parent who has physical custody of the child(ren). However, both parents have a legal obligation to support and care for their child(ren). If the parents can not reach an agreement regarding child support, the court will likely consider the income and financial obligations, the terms of custody, and the statutory guidelines when making an order for child support.

Can we make our own arrangements regarding child custody and child support?

Yes, parents can make their own arrangements regarding child custody and child support. In many cases, the parents are better qualified to determine what is in the best interests of their children, and the courts encourage parents to reach an agreement. However, with regard to child support it is a good idea to consult the child support guidelines of your state when determining the amount of child support that will be paid. Courts are more likely to review child support provisions, because courts must insure that the best interests of the child(ren) are beings served. If the provision on child support deviates greatly from the statutory guidelines, a court may not to approve it, unless cause for the deviation can be shown.

Q. How long will I be obligated to make child support payments?

Generally child support payments are made until a child reaches the age of 18, unless the child has special needs or there is an agreement to support the child while they are in college. It is a good idea to consult the laws of your state to determine the specific requirements.

What if my former spouse makes more money than me, do I still have to pay?

Yes, while several factors are considered to determine the child support award. The noncustodial parent will normally be required to make child support payments to the custodial parent.

What is the tax treatment of child support?

Child support is not taxable to the recipient nor is it a deductible expense to the parent providing it. The IRS allows only one parent to claim the child for the Child Tax Credit, usually this is the custodial parent; however, parents may reach their own agreement on this matter.

How will I receive the child support payments?

Child support payments may be made directly to you from your former spouse. It is also common to have wages garnished for child support payments, in fact, this is mandatory in some states. Today many employers have a direct deposit of payroll checks where the employee can set up an account to pay child support. In addition, many states have a Bureau of Child Support Enforcement and in some cases the child support is paid through this organization. Contact information for the Bureau of Child Support Enforcement can be obtained from your local courthouse. This organization is also likely to have easy to follow information on the child support guidelines for your state.

What is the formula used for child support?

The states have adopted guidelines to determine child support based on the income, debts, and obligations of both parties, as well as the number of children involved. There are three basic formulas used to determine support obligations. However, there is no hard and fast rule–different states may consider different factors, so it is possible to reach a different result depending on the state in which you live. The factors considered by your state can usually be obtained from your local courthouse, and even online.