Marital Separation Agreements: Frequently Asked Questions
By Gregor Weeks, Esq.
Attorney at Law The Weeks Law Firm, LLC
If you and your spouse are separating, whether you plan to divorce later or simply want clear ground rules while you live apart, a marital separation agreement can be very helpful. This guide answers common questions and breaks down what these agreements cover, how they work, and why they matter.
Note: Family law varies by state. This article provides general information, not legal advice. Always check the law in your state or talk with an attorney for guidance specific to your situation.
What Is a Marital Separation Agreement?
A marital separation agreement is a contract between spouses who are living apart (or intend to live apart) that sets out how key issues will be handled during the separation and beyond. It's also called a property settlement agreement, marital settlement agreement, or separation and property agreement in many jurisdictions.
Importantly, a separation agreement does not end the marriage or make either spouse free to remarry. That only happens through divorce or annulment.
What Can a Separation Agreement Cover?
You and your spouse can agree on most issues that affect your lives during separation and in anticipation of divorce. Categories include:
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Financial Matters
- Division of bank accounts, investments, and debt
- Who pays which bills while separated
- Which spouse owns specific property (home, vehicles, personal items)
- Responsibility for joint debt and credit cards
-
Support Agreements
- Spousal support (sometimes called alimony or maintenance)
- Child support arrangements consistent with state guidelines
-
Children & Parenting
- Custody and visitation schedules
- Decision-making responsibility for education, health care, etc.
- Who carries health insurance and pays for medical costs
-
Other Issues
- Tax filing decisions (e.g., filing separate or joint returns)
- Life insurance
- Use of family home
- Retirement benefits
Does a Marital Separation Agreement Have to Be in Writing?
Yes. To be enforceable as a contract, a marital separation agreement must be in writing and signed by both spouses. Most states also require that it be signed voluntarily, without fraud or duress.
Are Separation Agreements Legally Binding?
Yes, in the following ways:
- As a Contract. Once signed freely and voluntarily, a separation agreement is a legally binding contract between the spouses. If one spouse doesn't follow the terms, the other can pursue enforcement in court under contract law.
- When Incorporated into a Divorce. If you later divorce and have the agreement incorporated into the final divorce decree, it also becomes enforceable as part of the court order. This gives you additional tools like contempt motions if terms are violated.
What About Children? Can Courts Change Custody or Support in Separation Agreements?
Yes. Even if your separation agreement includes terms about custody or child support:
- Courts always retain authority over child custody and support if children are minors. Judges must consider the child's best interests and may modify terms if circumstances change.
- A separation agreement cannot limit a court's authority to protect children or set support according to state law.
Can You Change a Separation Agreement Later?
- Yes, if both spouses agree and put changes in writing and sign. A separation agreement can be amended just like any contract.
- If circumstances change dramatically, some terms may be modified by a court, but that generally involves reopening the divorce or custody proceedings.
Do You Need a Lawyer to Make a Marital Separation Agreement?
You don't always need an attorney to draft a marital separation agreement, but independent legal advice is strongly recommended if there are substantial assets, or disagreements.
Lawyers can help:
- Ensure fairness and compliance with state law
- Avoid unconscionable or unenforceable provisions
- Explain rights and obligations before you sign
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About the Author
Gregor Weeks, Esq. is the founder of The Weeks Law Firm, LLC. He graduated from University of Maryland Francis King Carey School of Law and is a licensed attorney with experience in family and estate law.
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