If you and your spouse or romantic partner are parting ways, a separation agreement is an important tool to reduce conflict and help you both transition to life on your own. Here is separation agreement issue checklist you can use to make sure you and your spouse or partner have thought through all the aspects of untangling your shared home environment.
Who Should Consider a Separation Agreement?
A separation agreement can be helpful to any married or cohabiting couple whose relationship has ended, but either they are not married or are not ready to go through a divorce. They are especially useful to unmarried couples with property to untangle and couples (regardless of marital status) with children in common. For unmarried couples, a separation agreement can act as a binding contract dissolving your informal domestic partnership and resolving any joint property issues. For parents, a separation agreement can provide children with a predictable schedule and a promise that neither parent is going anywhere because of the breakup.
Separation Agreement vs Settlement Agreement
Remember that, though the terms are often used interchangeably, a separate agreement and a settlement agreement are not the same thing. For married couples, a separate agreement is a contract the parties sign around the time they physically separate from one another, often before the divorce is even started. It controls who will do what regarding shared property, children, and financial obligations until the case concludes.
A settlement agreement, on the other hand, is a negotiated final resolution to the outstanding issues in a divorce. It can control ongoing child support and spousal support payments, distribution of property, contribution to attorney fees, as well as setting custody and parenting time. While these two often contain several of the same issues, a separation agreement is (usually) temporary while a settlement agreement is final.
The rules are a little different when unmarried couples enter into a separation agreement. This is because the Michigan family court does not have jurisdiction (authority) to resolve unmarried couples' property issues. Instead, those disputes happen in civil court. In that context, a separation agreement can be a way to resolve shared property issues without filing a civil action, as well as addressing custody, parenting time, and child support for any children in common.
What Should Be in Your Separation Agreement?
There is no one definitive list of separation agreement issues that must be included. Unlike a Judgment of Divorce, there is no statute saying what the parties must cover for their agreement to be final. Instead, the issues will depend on your situation, and how long you expect to be separated before your divorce is final. Use this separation agreement issue checklist as a guideline, but feel free to customize it to add (or remove) issues important to you and your partner.
Child Custody and Parenting Time Issues
The biggest benefit to entering a separation agreement early, before filing a complaint for divorce, is that it provides a roadmap for how you and your co-parent will handle issues related to your children until the Judge can enter a child custody order. When negotiating child custody and parenting time issues be sure to consider:
Legal Custody:
- Who will be primarily responsible for decisions related to your children's well-being? Remember that this is often shared.
- What tools or strategies will you use to discuss the children's education, medical care, religion, or extracurricular activities?
- What steps will you take to resolve disagreements about legal custody issues (mediation, arbitration, second opinions, etc.)?
- Where will the children attend school during your separation?
- How will each parent receive information from doctors, teachers, and others about their children?
- What responsibility do you have to notify one another about appointments, school events, or extracurricular activities?
- Who can sign the children up for summer activities or camps?
- How much control will you each have over the other person's childcare choices?
Physical Custody and Parenting Time
- When will the children stay with each parent? (Use the Michigan Parenting Time Guidelines to create a rotating schedule)
- How will you treat school breaks, holidays, vacations, birthdays, and other special events?
- When and how will the children communicate with one parent while in the other parent's care? (Access to phones, text messages, FaceTime or video calls)
- What process will you use to request adjustments to the parenting time schedule?
- Who will transport the children for parenting time and any events?
- Where will you meet for parenting time exchanges?
- What information does the children's school or childcare need about the division of parental responsibilities?
- Are there any restrictions on what should or should not be happening during parenting time (i.e. introduction to new romantic partners, use of alcohol, out-of-state vacations)
- Should there be any limits on interstate or international vacations?
- Who will control the children's passports?
Child Support and Spousal Support Payments
- How will each parent contribute to the financial support of the children? (Remember that once a custody case begins, child support will be calculated based on the Michigan Child Support Formula)
- How will you divide any additional expenses the children have (tuition, tutoring, medical co-pays, extracurricular activity costs)?
- How will you keep an accounting of payments?
- Should one spouse contribute spousal support for the other's benefit during the separation? (This is more common in single-income households and long-term marriages)
- Under what circumstances will spousal support payments end (i.e. death of the payer, remarriage of the payee, cohabitation with a new romantic partner, completion of education, full-time employment, etc.)
- Will child support or spousal support payments be made directly or through the Friend of the Court and the Michigan Support Disbursement Unit (MiSDU)?
Possession of Home, Vehicles, Key Properties
- Who will live in the marital home during the divorce?
- What access (if any) will the other spouse have to the property?
- Who will use which vehicles during the separation?
- How will the party moving out take possession of their personal property?
- When will the separation occur?
- How will the remaining party ensure that the moving party does not take things that do not belong to them?
- How will you deal with shared items (i.e. holiday decorations, family photos, sentimental items)?
- Who will have access to joint bank accounts?
- What steps will be taken to ensure neither party disposes of property or spends down assets during the separation?
- How will you resolve disputes over joint property?
Note that, in a separation agreement between unmarried partners, this agreement can be much more robust and final. In that case, you should work with an experienced family law attorney to draft up a formal separation agreement, signed by both parties, to control the division of any property held in both parties' names.
Status Quo Payments for Insurance, Home Expenses, and More
One category of separation agreement issues that does not come up during settlement negotiations is the maintenance of the parties' joint property until the divorce is final. This is often called maintenance of the “status quo.” It can include anything that needs to be kept up to date, including:
- Health, dental, and vision insurance premiums
- Car payments and car insurance
- Mortgage payments and home insurance
- Lease payments on rental homes
- Utilities, phone plans, internet service plans, and subscriptions
- Landscaping, snow removal and pool maintenance
- Children's tuition and activity fees
- Gym or club memberships
- Storage facility rentals
Get Help Negotiating Your Separate Agreement
Your separation agreement issues checklist can be as unique as your relationship. While this list provides a framework, your agreement could include anything important to you or your spouse or live-in partner. At Bebout, Potere, Cox & Bennion, P.C., we care about you and your family. We help individuals and families in Rochester Hills, Rochester, Troy, Lake Orion, Oxford, Oakland County, Macomb County and throughout Southeast Michigan. We can walk you through negotiating a separation agreement, checking off everything on your issue checklist. Call us at 248-651-4114 or contact us here to speak to an attorney.
