When a couple separates and eventually divorces, the process can include many factors and several steps.
Dissolving a relationship typically involves deciding how assets are separated, who gets what amount of money, and how child custody and visitation will be finalized. This process can be simple or complicated; quick or acrimonious.
However it is handled, it can be helpful to understand the process and what lawyers refer to as a marital separation agreement.
[SEE: 12 Steps to Protect Your Money in Divorce.]
What Is a Marital Separation Agreement?
A marital separation agreement is a document that specifies how marital assets and responsibilities will be divided. This can include property as well as income and assets.
A marital separation agreement is typically the last step before a divorce is officially declared as such in court.
Ideally, the process begins with the question, “Can we sit down and kind of see where we’re at?” says Keith Singer, attorney and president of Singer Wealth Advisors in Boca Raton, Florida. Often, these conversations can become more complicated.
Sometimes, couples already have a prenuptial or postnuptial agreement in place to build on. If a couple knows that divorce may be a possibility, they could have previously made an agreement approximating some decisions. For example, a couple in therapy might agree on such a document.
“Maybe you say, ‘Look, we’re not getting along, but I want to work this out. Let’s go to counseling.’ And maybe one spouse says, ‘I want to go to counseling, but I also want to know that if it doesn’t work, that we’re both protected by a postnuptial while we’re both still trying,” Singer says. “Because things can get really ugly.”
[READ: Hidden Costs of Divorce: Learn How to Prepare for Them]
What Is Included in a Marital Separation Agreement?
A marital separation agreement will generally include details on factors such as alimony, division of assets, property and debts.
If children are involved, the marital separation agreement should also detail who will get what amount of custody and what visitation and child support will look like.
Many people assume an agreement like this is a boilerplate document, but they can be honed toward divorcing spouses’ needs, says Megan L. Drury, an attorney in the family law department at Gimbel, Reilly, Guerin & Brown LLP, in Milwaukee.
“You can really fine-tune it and tailor it to the specific needs of a case,” Drury says. “You really can get creative and make things work for people.”
And these agreements need to include several factors such as a full disclosure of assets.
“It can get thrown out if it doesn’t meet certain requirements,” Singer notes.
[What to Do With a House in a Divorce]
Who Needs a Marital Separation Agreement?
A couple may decide to get a marital separation agreement if they are living separately but not yet ready to divorce. This can potentially allow time to feasibly work out problems without the scheduling complexities of court conferences that come with a divorce underway.
“Often, a separation agreement can allow you and your spouse the time apart you need while you try to repair a marriage that may be falling apart,” according to the New York City Bar Legal Referral Service.
In the case of divorce, a separation agreement could be used, or it could also be voided if the couple stays together and signs a new statement saying that the agreement is no longer valid.
Anyone going through a divorce will need a marital separation agreement to avoid a trial. It is the last step before a judge makes the divorce official. It’s advantageous because you can decide with the agreement of the other party, as opposed to a protracted court battle, Drury says.
“If it includes all of the issues that the court would have to decide in a divorce, then you can get divorced and the court will put their stamp of approval on the document, and then you’re divorced,” she says.
Without one, couples can end up in a trial, which lawyers generally agree is not the ideal way to get divorced because it is longer, often more costly and almost always more adversarial as a process.
More from U.S. News
5 Financial Considerations of Gray Divorce
What Is a Marital Separation Agreement? originally appeared on usnews.com
