Considering a Separation Agreement with your Spouse?

A separation agreement with your spouse allows a husband and wife to agree on all of the same issues that would need to be decided upon divorce, including maintenance or alimony, division of marital property, child custody and child support.

Although some states will enforce a verbal separation agreement, most states require that it be in writing and a few states require that the signatures be notarized for the agreement to be enforceable. In addition several states require the couple to actually separate (begin living apart) at the time, or just before, the separation agreement is created in order for it to be enforceable.

In most states a separation agreement must be entered into voluntarily, however, in some states a legal action can be taken in Court to obtain a separation.

All states encourage couples to work out their marital issues amicably. For this reason separation agreements are encouraged and will, for the most part, be upheld by a Court. That said there are certain reasons a separation agreement will be subject to challenge by either the court or a spouse who later changes their mind.

If a separation agreement is to be challenged, it is generally easier for a Court to reject or modify the agreement if the challenge comes before the agreement is approved by the Court or incorporated into a divorce decree. Once a Court approves a separation agreement that Court is likely to be more reluctant to allow any challenge to the agreement.

Lack of Consideration and Unfairness

One reason that a separation agreement might be challenged is if it is so one sided as to be overly unfair. Sometimes this can be explained in terms of a lack of consideration, meaning there is nothing in the agreement for one spouse. An overly one-sided agreement is sometimes referred to as unconscionable.

A Court is most likely to consider a challenge to a separation agreement if it has a concern that one spouse will become destitute. The state will be worried, if one spouse becomes destitute, because of an overly unfair agreement, that spouse, and potentially the children, may become wards of the state. Thus, depending on the state, the terms of the separation agreement would usually need to be extremely one-sided, leaving almost nothing to one spouse, in order for it to be challenged on this basis.

Duress or Undue Influence when signing a Separation Agreement

Separation agreements are more susceptible to challenges based on duress than most other types of contractual agreements. This is particularly true if the other spouse was the cause of the duress or exerted an undue influence or control over the other. Usually a claim of duress would go hand-in-hand with a claim of unfairness or unconsionability. Thus the claim of duress may be used to explain why the spouse entered into the one-sided agreement.

Effect of one Spouse not having an attorney

If an attorney did not represent the spouse that is claiming duress or unfairness, this will tend to increase that spouses chance of challenging the separation agreement. However, if the agreement adequately provides for the spouse it will usually be upheld, regardless of whether an attorney represented the spouse when the agreement was created.

Misrepresentations and Fraud

One reason that will almost always allow a separation agreement to be challenged is when one spouse lies or misleads the other spouse as to a material fact. This often occurs in the context of one spouse understating the amount or value of marital assets. If this is shown to have occurred the separation agreement will almost always be challengeable.

Custody and Child Support

Spouses can use separation agreements to agree, within reason, as to custody, visitation and child support. The Courts encourage spouses reaching an agreement on these issues. However, unlike other provisions a Court is more likely to consider whether the agreement regarding the children is reasonable. Whenever an agreement concerns the children the Court will seek the outcome that is in the best interests of the child or children. Unlike some other provisions, an agreement on child support can always be revisited if circumstances change.

The effect of reconciliation with your Spouse after a Separation Agreement

Reconciliation can occur when a husband and wife separate and then restore their marriage. For it to be considered reconciliation the spouses must generally return to living together as husband and wife, engage in sexual relations and intend to resume married life permanently. Spouses merely living together as an experiment to see if they want to reconcile and/or engaging in sexual relations is not enough.

The effect of reconciliation on a separation agreement will vary from state-to-state. Generally if, after reconciliation, the spouses can, by their words or conduct, rescind a separation agreement. In the common circumstance where a couple separates but never divorces, later reconciles and lives together until one dies, the separation agreement will generally be held invalid.

If a separation agreement required the transfer of property and then the payment of alimony sometimes reconciliation can lead to an unfair result. This is because the property transfer may have occurred prior to reconciliation and thus might not be changed even though, as a result of reconciliation, alimony is no longer required. This could be a significant problem if the reconciliation later fails and the couple decides to split once more.

It is recommended that if a couple that has entered into a separation agreement decides to reconcile, each spouse should consult with an attorney to see how that might effect the agreement.