Questions About Separation

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Questions About Separation

What is a separation agreement?

A separation agreement outlines the rules by which each party must abide during the legal separation, such as property, debt and asset division. All of this information will be provided in the separation agreement and will be agreed on by both parties. Both members of the marriage will need to provide their name, as well as important legal information about all children in the marriage, as well as which child will live with which spouse. The specific rules and guidelines surrounding separation agreements vary from state to state.

Can we hire one attorney to prepare our separation agreement?

One attorney cannot represent both spouses. So, if you proceed without an attorney, you won’t have anyone looking out for your interests. If your spouse proceeds without an attorney, he or she may be able to claim later that the agreement is unfair, or that they didn’t know what they were signing because they didn’t have an attorney involved.

If you and your spouse truly agree on all issues in your divorce, your best bet is to participate in divorce mediation, which is a process involving a neutral, third-party mediator (usually a family law attorney trained in mediation). The mediator works with both spouses to help them form and finalize an agreement. Often, the mediator will draft the Divorce Agreement, and then the spouses can ask their individual reviewing attorneys to take a second look.

Can we divide our property in a separation agreement?

Yes. A couple that is separating can agree on a division of property in their separation agreement, and that agreement will be binding on them. The property to be divided consists of real property (such as land and the buildings on it), tangible property (cars, jewelry and furniture for example) and intangible personal property (such as bank accounts, stocks and bonds, vested pensions and life insurance).

If one spouse violates the terms of a separation agreement, can he or she be held in contempt of court?

Generally yes. The majority of separation agreements are attached and incorporated into the final judgment and therefore become a court order. Contempt of court is the failure to obey a court order without legal justification. Therefore, as long as the separation agreement is attached and incorporated into the judgment, the spouse who violated it can be held in contempt of court. If the separation agreement is not attached and incorporated a spouse may have the option to sue the other spouse for breach of contract if he or she violates the separation agreement.

Will a separation agreement stop my spouse from hassling me?

While separation agreements usually have a non-harassment clause in them, you should understand that no piece of paper – be it agreement or court order – is going to stop a person from doing something he or she wants to do. If the problem is one of physical violence, a court order would be better than a separation agreement and could be used to punish the wrongdoer if he or she violated the order. If there is only an agreement, a lawsuit for breach of contract is one possible remedy for breaking the promise of not hassling each other.

Is a judge bound by the terms of our separation agreement that do not pertain to our children?

With settlement agreements regarding property and debt, judges will generally enforce them so long as the agreement is not unconscionable.

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If you are considering separation, our divorce attorneys will be glad to help you. Contact us online or by calling us at any one of our locations throughout the Midwest.

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