Separation Agreements: What They Are, How They Work & When To Bring in a Lawyer


Separations can get messy, quickly. With so many emotions, it’s easy to misunderstand, misinterpret, or misrepresent agreements or settlements.

Separation agreements take the unpredictability out of the years following the divorce. When creating a separation agreement, you need to carefully consider the whole picture – what’s happening now and what could happen in the future. This document will affect your entire life; it should be drafted, reviewed, and signed with deep consideration.

Let’s start at the beginning.

What is a separation agreement?

 A separation agreement outlines the terms of your divorce or separation settlement. When legally created, these agreements determine a number of detailed agreements between two parties, including child support, child custody, property division, and monetary division.

Separation agreements remove guesswork from this complicated equation. Laying out expectations and verbal agreements on paper makes the process of separation easier for everyone.

Just as every situation is different, every separation agreement should reflect various financial, personal, and professional considerations. Your separation agreement may need to outline more or fewer details than the average.

Can I use an online separation agreement?

This is a complicated question. Ultimately, it’s not recommended for the final separation agreement. These online templates can provide a start for a separation. Online separation agreements often cover all the basics, but they miss vital components necessary to make this process legal – and to make this process easy.

When should I make a separation agreement?

As soon as you’ve decided to separate from your partner. A separation agreement – when made early and properly – should make the process easier and shorter. The longer you wait, the more likely the situation will be drawn out.

Generally speaking, you have three options when seeking a separation and creating a separation agreement. Warning: they get less pleasant the further we move down the list.

1. You create a separation agreement with your partner.

In this situation, you’re likely on somewhat-good terms with your spouse or partner. Maybe it’s just time to part ways; maybe you’re able to put your differences aside while discussing the separation.

Reason aside, you’re able to work things out mostly between yourselves. In this case, it’s usually best to draft an agreement together and take it to a lawyer once you’ve established several common points.

The agreement, at this point, can be handwritten. You may choose to make large decisions, such as child support and custody decisions, and let the lawyers point out smaller details.

You can also complete a templated online separation agreement. These tend to be fairly good resources, as they provide a guide to details you may not have considered in a handwritten agreement.

Once you’ve drafted the agreement – whether it’s handwritten or templated using an online source – you still need to bring the agreement to a lawyer. Your lawyer can provide insight into steps or considerations you may have missed. They’ll also be able to ensure the contract uses the correct language, and that you’ve addressed any clauses and declarations that could render the agreement illegal or unbinding.

2. You immediately find legal representation.

This is a less desirable route: it’ll cost more in the end, and it may take longer as negotiations are conducted through lawyers, rather than between you and your spouse directly.

This choice is most often used when the separation is less amicable. People in this situation often find it hard to agree on various aspects of the separation. Again, it may be a harder and longer fight.

If you’re unable to draft the initial agreement, however, this is the best step to protecting yourself during a separation. Once you’ve found legal representation, you’ll have someone on your side to protect you during negotiations and decision-making.

The lawyers from both parties will work to draft a thorough and comprehensive separation agreement. Once it’s legally drafted by adept lawyers– and both parties agree it is a fair document – it should protect you against having to follow the next step.


3. You take your separation to court.

This is our last – and most complicated – option during a divorce or separation. Illegal and non-binding separation agreements can lead to this stage. A hostile or tough separation can also find itself here. If one party refuses to participate in the process, or if negotiations get stalled, you can also find your separation heading to court.

At this point, the court system will make your separation legally binding. Both parties will need to follow the decisions made at court. It is usually best to avoid this route, though it can be a necessary step in certain cases.

What should my separation agreement include?

Again, it’s situation dependent. Every separation will look different because every partnership functions differently. At the base, you should consider:

  • Children: Who gets custody? What financial support do they get? What kind of parenting contact is allowed?
  • Finances: How will you divide your assets? How will you divide debt? Will one party pay the other spousal or partner support?
  • Property: Will the property be sold and divided? Will one person keep certain property?

Depending on your situation, there may be several more factors to consider. For it to be legal, your financial situation, amongst other things, must be completely transparent.

Other details always arise during separation agreements, some of which could deem the contract unenforceable.

When do I get a lawyer?

 You can choose to get a lawyer at any point in the separation process. It really depends on how amicable your separation is: the friendlier you are with your partner, the later you might pull in lawyers. With more hostile separations, you might want to bring in a lawyer right away.

A separation agreement needs to be reviewed by a lawyer to ensure its legality. As professionals, lawyers can advise on more technical aspects of the separation agreement and certify that your agreement is binding. Certain conditions – including matrimonial property requirements, financial disclosure, and more – need to be met.

Without a binding agreement, you may face future lawsuits and legal repercussions – all leading to a more expensive and lengthy separation process. Having your separation agreement reviewed by your lawyer just means peace of mind for you.

What You Need to Remember

Separation agreements will affect the entirety of your life: where you live, how your children live, what assets you keep, and whether or not you receive child or spousal support. Making sure you fully understand what you are gaining and what you may be giving up will prevent future friction between you and your soon-to-be ex-partner.

Need more guidance through your separation or just want some advice on where to start? Contact one of our family & divorce lawyers today.

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