Separation Agreement: Negotiate a Marriage Settlement (2025)

Separation vs. Divorce

Separating couples must address key issues, such as where the children will live and who will pay their expenses. A couple in this situation typically has two options for memorializing the details of their arrangement.

First, they could file for divorce. A court will enter preliminary orders addressing child custody and support, property division and alimony. These orders will govern the couple’s legal and financial relationship until the court finalizes the divorce and dissolves the marriage.

Alternatively, they could enter into a separation agreement. The couple would remain married and, unless they file a divorce petition, would not have their marriage dissolved in the future. The marriage separation agreement governs their legal and financial relationship during the separation.

A separation might be temporary. A couple might separate until they meet the state’s requirements for filing divorce papers. For example, New Jersey law allows couples to file for a no-fault divorce if the marriage has been broken for at least six months.

Alternatively, a separation might be permanent. In other words, a couple might separate without any intention of reconciling or divorcing. Couples choose this option for many reasons. Their religion might prohibit divorce, or they might choose to stay married for tax reasons or to avoid the cost of a divorce.

Regardless of the reason, the separation agreement is the backbone of the couple’s arrangement while they live apart.

What Is a Separation Agreement?

A separation agreement is a contract between spouses. Domestic partners can also use separation agreements in states that recognize domestic partnerships. Like any valid contract, it must include certain features.

Mutual Assent

Many spouses wonder how to get a separation agreement. In theory, getting a separation agreement is easy. You simply need to reach an agreement with your spouse. In practice, this step might require the spouses to set aside their differences and work together on a mutually agreeable solution.

Mutual assent means that the spouses agree on the same terms. It does not mean the spouses are equally happy or unhappy about the agreement. They do not even need the same reasons for entering into it. They only need to assent to the agreement’s terms.

Consideration

Consideration is a mutual exchange of promises. Any promise to do something or forgo doing something will constitute adequate consideration for an agreement.

However, the promise must be legal. For example, one spouse cannot promise not to seek child support because child support belongs to the child. Moreover, such a promise might be viewed as detrimental to the child’s interests and would not be enforced by a court.

Defined Terms

The terms of the agreement must be objectively clear and unambiguous. If the terms cannot be interpreted, the contract may be partially or fully void.

Contents of Separation Papers

What does a separation agreement look like? It is a contract between spouses that addresses the legal and financial relationship between them while they live apart. Specifically, the typical separation agreement contains terms for four key issues.

Child Custody

If the couple has children, both parents have the right to spend time with them and participate in their upbringing. Child custody, also called a “parenting plan” in some jurisdictions, describes the living arrangements for the child.

Child Support

Every parent has a legal duty to support their child financially. However, some of a child’s financial support comes in the form of food and housing. Thus, the parent who lives with the child more often may receive financial support from the other parent. This money goes to the child’s expenses while living with that parent.

Alimony

When a couple separates, they must untangle their finances. A financial separation agreement may address any inequities in each spouse’s economic position with alimony. Alimony is money paid from one spouse to the other to provide financial support.

Property Division

Along with child custody, property division is often the most important issue addressed in a separation agreement. A separation of property agreement will divide the couple’s assets and debts.

Legal Separation

In the U.S., 44 states plus Washington D.C. recognize legal separation. This procedure allows a couple to go through a divorce-like process to end their marriage without dissolving it.

In these states, the couple can settle the case by filing a separation agreement with the court. Once the court approves the agreement, it becomes legally binding and ends the case.

Does a separation agreement have to be filed in court? Delaware, Florida, Georgia, Mississippi, Pennsylvania and Texas do not recognize legal separation and, thus, have no procedure for filing a separation agreement in court. For example, Florida chose to make divorce a simple process rather than creating a legal separation process.

In the remaining states, a legal separation agreement is recognized as enforceable. The court or a divorce lawyer can explain how to file a separation agreement. Generally, one spouse will file the petition for separation. Once the spouses work agree on terms, they can file the separation agreement with the judge handing the separation petition.

Learn More About Separation Agreements From ConsumerShield

ConsumerShield is committed to guiding people who are facing the end of their marriages. Qualified legal assistance can help you determine what to include in a separation agreement. Contact us for a free case evaluation and a lawyer referral today.