Can a separation agreement be helpful even in a pending divorce?

When a marriage hits the rocks, couples may informally decide on a trial separation. Yet there may be instances where a legal separation could provide protections.

As background, a separation agreement can be used to legally establish the rights and responsibilities that parties will have to each other while living separate and apart. The agreement, if drafted correctly, functions as a legally binding contract.

In the case of a couple exploring a separation, a legal contract may protect each individual’s claim to joint property and assets. This protection also applies to debt divisions.

As a practical matter, couples going through a divorce may also find that a legal separation provides peace of mind during the slow waiting process of a divorce. Under state law, any debt acquired after a legal, permanent separation is generally only the responsibility of the individual who incurred it. However, certain debts used for necessary family support, such as house payments, may continue to be characterized as joint debts.

It is important to consult with an attorney about the legal effect of a separation agreement. On the one hand, the law might not give any legal effect to couples undergoing a trial separation but who do not yet intend to end their marriage. Even if such individuals are living apart, a separation may have no effect upon property division matters and the marital estate until a legal contract has been executed that gives a court the authority to determine property divisions and duties.

On the other hand, certain representations or admissions in a separation agreement could potentially have an adverse impact upon an individual in divorce litigation. With the help of an experienced family law and divorce attorney, an individual can enter into a separation agreement that offers protections, rather than consequences.

Source: FindLaw, "Legal Separation vs. Divorce," copyright 2015, Thomson Reuters