If you know it's time for your marriage to end but aren't interested in a drawn-out legal battle or are worried about making ends meet after you or your spouse move out, a separation agreement may be the right tool for you. By negotiating a separation agreement as a first step, before filing for divorce, you can streamline the process later, leading to an easier divorce when the time comes.
What is a Separation Agreement?
A separation agreement is an enforceable contract between domestic partners, usually spouses or parents with children in common, that controls how the parties will address shared issues after separation. Unlike a settlement agreement, you don't have to have a legal case pending to execute the contract. That makes separation agreements a great first step to minimizing conflict and resolving custody, property, and support issues without going through a lengthy divorce trial.
Separation agreements can be helpful for almost any couple ending their relationship (though they are generally not appropriate in cases involving domestic violence or coercive control). They are especially useful in cases where one spouse or parent depends on the other for financial or practical support. If you aren't sure how you can turn one household into two and still pay the bills, a separation agreement can help answer those questions.
Common Terms in a Separation Agreement
One of the best things about a separation agreement is that it can be customized to meet your family's needs and obligations. Because it is a contract, you and your spouse can agree on almost anything you need to ease the transition into your separate lives. Common terms in a separation agreement include:
- Who will make decisions for your children's custody and care
- When the children will spend parenting time with each parent
- Where the children will attend school, daycare, or extracurricular activities
- Financial contributions to living expenses in the form of child support or spousal support
- Payment of ongoing financial obligations like shared credit card debt, mortgage payments, utilities, car payments, medical debts, or loans
- Division and access to marital property (including who will live in the marital home) and financial accounts
- Maintaining health and life insurance coverage for both parents and children
- “Pet custody” agreements for furry members of the family
- Conditions that will trigger a divorce filing (such as the children's graduation)
- Who will pay for attorney fees at the time of divorce
When to Get a Separation Agreement
The best time to start negotiations is when you and your spouse agree it is time to separate but before either of you move out of the house. This can include if you are going to “take a break” or live separately while going through marriage counseling to reconcile and keep your marriage intact.
By starting your negotiations early, you can avoid the conflict caused when one party is surprised by a divorce complaint. It gives both you and your spouse time to process the emotions that come with the loss of a marriage, while still providing a framework for how you will handle your separation. Some couples live for years under a separation agreement before heading to court to officially end their marriage.
Why You Should Work with an Attorney in Negotiating Your Separation
Many couples separate without much forethought. They may not even think about meeting with a lawyer until it is time to file for divorce. But working with an attorney as you go through the separation process can ensure that your separation agreement covers everything necessary to provide for you and your children once one home becomes two. An experienced family law attorney can help you identify language that could create problems, and even more litigation in the future. You can also rely on the attorney to close gaps in your agreement (such as enforcement measures) that you may not have considered on your own.
How Separation Agreements Make Divorce Easier
Separation agreements make divorce easier because you will have already negotiated many of the issues that arise in the case ahead of time. Michigan courts have held that the property and support obligations agreed upon in a separation agreement are enforceable in a later divorce action. This prevents your spouse from changing the deal after the fact and avoids going through the time-consuming, and often expensive, process of proving all your assets and debts in court. Instead, you can file a motion to enforce the separation agreement, shortcutting the process and getting to a judgment of divorce faster.
When it comes to child-related issues, like custody, parenting time, and child support, the Court can always consider up-to-date information to make decisions based on the children's current best interests. However, the fact that you and your spouse agreed on a schedule previously can establish a baseline for the children going forward. In legal terms, Michigan Courts will generally not change the children's “established custodial environment” unless there is clear and convincing evidence that doing so is in the children's best interest. Something significant would have had to change for the Court to disregard your separation agreement and invent a whole new custody order .
Get Help Negotiating a Separation Agreement from a Michigan Family Lawyer
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 come to separation agreements that address the emotional, financial, and practical issues around custody and divorce. Call us at 248-651-4114 or contact us here to speak to an attorney.
