Separation Law

5 traps to look out for in a Separation Agreement

A Separation Agreement is a signed document between couples who do not wish to live together any longer. The document is designed for couples who do not wish to legally end their marriage or civil partnership. Therefore, the document is not classed as a divorce; rather it is a legally binding agreement that can be used as evidence to establish the terms of a future divorce petition.

The Separation Agreement sets out responsibilities that need to be considered including financial arrangements, property and arrangements for any children involved.

The Separation Agreement is vital as it governs the responsibilities of both parties after the divorce. This form of separation is favoured by many couples wishing to end their marriage or partnership because it is easier for both parties to understand what has been agreed and what is expected of one another. Once legally finalised, the agreement is between you and your previous partner. As the document is legally binding, it means the both parties can sue each other if they breach the agreement.  Couples who wish to separate are highly recommended to agree to a written agreement as it reduces the risk of disputes in the future. The Separation Agreement helps couples avoid going to court to settle any disputes in the future.

Below are 5 common considerations that get neglected in the agreement which are vital to include:

Child Visitation

While most Separation Agreements schedule normal visitation  on a daily basis, some couples forget to form agreements on special holidays throughout the year, for example Christmas/ New Year, birthdays, Easter, Mother’s Day and Father’s Day. To avoid disputes during these holidays in the future, which may cause distress for the children, it is important to include a visitation schedule for special holidays that each party agrees on.

Incorporation and Merger

Understand the ‘Incorporation and Merger’ clause of the Separation Agreement. If the document fails to merge into the judgement of divorce, the agreement will be an independent contract making it more difficult to modify in the future.  In the agreement, you have the option to merge some provisions, but not all of them. It is recommended that you consult a solicitor to advise you on which provisions to merge and which ones to leave.

Health Insurance

It is important to outline in the contract which party is responsible for covering health insurance. Many families get coverage through one spouse’s employer, which covers the entire family, however after a divorce , the spouse with family health insurance coverage can no longer cover the dependent spouse. Each party will need to come to some arrangement and decide who will cover the insurance costs.  In the agreement you need to outline who is responsible, what type of insurance you are covering and how long the coverage will be paid for.

Child Expenses

While agreements outline child support payments such as child benefits, parents often forget to consider other costs which fall outside of the normal child support payments.  In the contract it is recommended that you establish what costs both parties are responsible for. For example, costs that may be shared between each party are education costs, medical care, school trips, hobbies and extracurricular activities. This is one of the biggest disputes that arise between each party once the contract has been finalised, so it is vital that you consider other expenses before you sign.

Signing on the dotted line

Separation Agreements may have specific responsibilities that may be difficult to change once finalised. Therefore, it is important to consult a divorce solicitor before signing. A divorce solicitor will be able to tell you what your rights are, and will be able to notice any blips in the agreement that they believe to be unfair or legally incorrect. Consulting a solicitor may save you time and money in the future, should you wish to try and alter or appeal the agreement.

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