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.