Print
Legal
Hits: 494

They sound very similar, and in many ways, they are, but how are they different and do you even need them?  Get the facts about two common contracts every spouse should understand before separating and/or divorcing!  

First, what is a separation and how does it differ from a legal separation?

Separation

A separation is when a married couple lives separate and most often apart for a variety of reasons.  Most often it is for the purpose to improve the marriage, decide if it can be saved and/or to legally dissolve it through the courts. 

The legal differential between references of separation and legal separation varies (meaning while someone living separate and apart from their spouse may be referred to as a legal separation, no state statutes or laws are in place to legally recognize it by way of a court order).  This type of separation may also be referred to as physical separation.  

Legal Separation

Most states recognize the formal establishment of a legal separation as when a couple separates and terms of the separation (e.g., maintenance, property division and custody) are ordered by the court.  These terms can be established by a separation agreement and/or by a judge's decision for all or part of the terms of the legal separation. 

In some states, the legal separation is a required first step to a divorce whereas the terms are either established in a separation agreement later approved by a judge or by order of the court (meaning the judge decides some or all of the terms). 

After the specified waiting period, the terms of the order can then be incorporated into a Final Judgement of Divorce.  

Legal Separation in most states is started and processed in a very similar way as filing for a divorce.   

In certain situations, a legal separation is extremely necessary and/or beneficial.  It may be the best option for couples who seek a long-term and/or indefinite divorce alternative since there are few differences between the two (the most significant being that spouses who are legally separated cannot remarry like those who have obtained an absolute divorce established in a Final Judgement of Divorce).   

Common reasons some couples may choose legal separation over divorce could be associated with religious or personal beliefs, familial expectations, insurance, finances and/or hopes for reconciliation.  But the choice is a personal one and the reasons vary from couple to couple.  However, no state law currently exists as reason that prevents a couple from divorcing in the United States.

States without an Option for a Legal Separation

The states that do not recognize legal separation through the courts are currently Pennsylvania, Texas, Delaware, Mississippi, Florida, Louisiana*, Georgia & Maryland.

*Louisiana only offers legal separation for "covenant marriages" but not traditional ones.  Covenant marriages were devised by the Louisiana Legislature in 1997 with the intent of reducing the divorce rate.  Couples with covenant marriages can still divorce, but the process is more complicated.

Similar Legal Process to Legal Separations 

The term for legal separation may also vary from state-to-state.  As an example, North Carolina* and New Jersey offer "divorce from bed and board" while others refer to legal separation as a 'limited divorce' even though the couple is still legally married.  Certain legal aspects of these variations may also exist.

* Divorce from Bed and Board should not be confused with the state's guidelines for a legal separation which has no formal court order required for its establishment.  DBB is a fault-based legal action (meaning there must be grounds) and the only way to establish a court-ordered degree of legal separation in North Carolina.

Contact a local attorney or your county's circuit court clerk for your state's requirements for legal separation since they vary drastically from state to state.

What is a Marital Separation Agreement (MSA or Separation Agreement)?

A Marital Separation Agreement is commonly part of the separation process to detail each spouse's rights and settling terms between the spouses who have intentions to separate and/or divorce unless a judge decides the terms of the separation, or the couple chooses to bypass the agreement.

It may be considered a temporary agreement between two spouses until the couple reconciles or the divorce has been legally completed or it may be used indefinitely if the couple does not choose to divorce.  

Terms in a Marital Separation Agreement and/or Court Order

Know that a Marital Separation Agreement may not need be established.  It depends on the state and the couple's situation as to whether it is required or legally advisable. 

If it is or a couple just wants to do so, they will establish terms that will typically remain contractual unless they meet the legal guidelines for reconciliation set forth by the laws of their state and/or as part of their agreement.  Otherwise, if they divorce, in most cases, the Marital Separation Agreement (MSA) is utilized as a foundation from which to build the Marital Settlement Agreement (MSA) which is incorporated and merged into the final divorce order. 

Court Order

In some cases, in states that offer legal separation, the Separation Agreement will be required and need to be approved by a judge.  If the couple cannot come to an agreement on the terms of the separation, a judge will decide and enter an order of the court whereas any party failing to abide by the terms of the order may be held in contempt. 

A party found in contempt may face serious penalties or jailtime, thus making this option ideal for anyone who feels they may have trouble with enforcing the terms of their Separation Agreement by breach of contract.

DIY Marital Separation Agreement

If a couple simply wishes to establish their own Separation Agreement without legal guidance or the courts involvement, they may do so.   Drafting their own agreement until they decide if divorce is what they want may be an economical way to establish terms of their separation.

It's always best to seek legal advice before making any agreements regardless of if it becomes part of a legal separation since the agreement has legal consequences.   

If one party violates the terms of the contract the other can sue for breach of contract.  However, it's important that the Marital Separation Agreement have both signatures, is dated and notarized to ensure the greatest validity of the contract.

Separate Residences

Legal Separation Guidelines

When a couple decides to divorce or separate, they will most likely establish separate residences. The details as such should be included in both agreements. 

In some states two separate residences are required when establishing a legal separation. 

Waiting Period for Divorce

Note that regardless of if you and your spouse process your separation through the courts and/or have a Separation Agreement devised without approval from the courts, many states require a separation period before a divorce can commence.  Most of those states require the spouses to live in separate residences (as noted above), rather than separate while cohabitating, for a specified period of time for their separation to qualify based on the state's statutes and regulations.

What is a Marital Settlement Agreement (MSA or Settlement Agreement)?

If settled outside of court or arbitration the couple will agree on more permanent terms of their divorce that will be listed in a Marital Settlement Agreement.  Once approved by the courts, it will be incorporated and merged or incorporated and not merged into a Final Judgement of Divorce (Divorce Decree) and the marriage will be dissolved.  

The specific issues that affect each divorce relegate the reasoning to merge or not merge the settlement agreement. 

Court Order

Once a settlement agreement is incorporated and merged into the divorce decree, the settlement agreement ceases to exist, and the terms are enforced by a court order (Judgement of Divorce or Divorce Decree).    In most cases, if one party has violated the order the other would ask the Family Court that issued the order to find the other party in contempt of court.  

Contractual

If the settlement agreement is incorporated but not merged into the divorce decree, it maintains its contractual status separate from the divorce decree.  This means it survives the judgement of divorce and remains to exist as a separate contract between the parties.  If one party fails to abide by that contract the other can sue through the Civil Courts unless the terms are specific to issues whereas the Family Courts have jurisdiction (e.g., child support).

There may be pros and cons to this option.  The two most common, 

Pro:  The courts authority is not limited to family law statutes and state laws that may affect the outcome of the case.

Con:  The violated party has to sue to get the court to enforce the order and it may be more difficult to get approval to modify.

Confusing Lingo 

A few things that may be confusing and can only be verified upon understanding your local laws and/or speaking to a local attorney.  But we thought we'd clear up a few common misunderstandings we found online.

Ask an attorney

A local attorney is essential to providing guidance when negotiating the terms of the agreement if you do not have a firm understanding of your state's statutes and regulations.  

Similarities of both agreements

The terms of the separation agreement are often used as a basis for the settlement agreement.  After the couple is separated for a period of time, they will have had time to determine if the current terms of their separation will work as permanent terms of their settlement agreement.   If either spouse wants to change the terms when establishing the settlement agreement to be incorporated into the final order, he/she can choose to renegotiate some or all of the terms of their final settlement agreement and/or take the issues before a judge or arbitrator to decide.  

The terms may include, financial support, child custody, asset and debt allocation and living arrangements.

Property Division as part of a Marital Separation Agreement and/or Marital Settlement Agreement

During a separation and/or divorce a couple will need to sever their financial matters so that each establishes individual assets and debts from marital assets and debts.  These are common terms in both the separation and settlement agreements.  They basically stipulate the details regarding who gets what.  

Their debts and assets may include, but are not limited to,

Marital Assets (not to be confused with separate assets - consult an attorney for guidance)

Debts

Each spouse should know their tax liability regarding their assets and debts when devising their agreement(s).  Consult a tax professional for guidance to avoid costly mistakes. 

Note that an attorney (other than a tax attorney), judge, arbitrator, commissioner, mediator and/or any officer of the court is not obligated to advise and/or protect you or your interests regarding decisions, requests and/or agreements made that could have tax implications.  Furthermore, they are not professionally qualified, licensed and/or credentialed to advise you on tax matters.  This includes judgements following a hearing or trial, absent of evidence that would prove any such liability or gain.

Support 

In some cases, if one spouse has higher earnings than the other and upon agreement and/or court order, that spouse will pay what is referred to as spousal support, maintenance and/or alimony.  In the case of a separation agreement, this is often referred to as temporary support, maintenance and/or alimony.  The terms of that support will specify,

It's important to understand the laws that govern your state as they apply to support.  Knowing the laws and your chances if you took your case to court can help you when negotiating with your spouse regarding support.  

Tax laws have changed regarding support

Each side should also know the tax consequence of support.  The laws have changed in recent years.  Speak with a tax professional for help.  Again, it's important to understand that it is not your attorney or a judge's responsibility to explain any tax liability or consequence of the terms of your divorce.  

What does a judge consider when determining support?

In many states the judge will be mostly interested in the following (but refer to a local attorney for specifics in your state as some of these may not apply while others may be omitted).

Parenting Plan

If the couple has children, they will need to establish a parenting plan that, among other things, specifies the following,

*May be shared (called joint legal custody and shared physical custody)

WARNING before you divorce

Remember, that the language of the separation and/or settlement agreements is very important.  You should also understand the differences between merging any agreement into the Final Judgement of Divorce or if the agreement will survive The Final Judgement of Divorce.  This is specific to the enforcement of the terms you have established, the possibility of modification(s) to said terms and where you would go to have the terms enforced (e.g., Family or Civil Courts).  This is particularly important regarding custody and child support. 

So, either get to know the state statutes and regulations or speak with an attorney to fully understand your rights and the legal consequences to avoid problems later.  See our February 2022 article, 25 Divorce Blunders to Avoid for examples of what not to do.


1 The terms of the settlement agreement, as part of the Final Judgement of Divorce should be considered permanent.  However, the terms of the separation agreement are terms that can still be changed before they become part of the final judgement.

Modifications

A final settlement agreement is permanent other than modifications sought at a later time.  There is no guarantee the modification(s) will be approved unless the terms of which are specifically part of the original settlement agreement.     

Appeals

Appeals are very hard to win regarding terms of a settlement agreement (part of the final judgement).  In some cases, when a judge determines the terms (regardless of if a separation agreement was established or not), a right to appeal may be granted.  But unless there is new evidence or the law was not properly applied to the case, many attorneys would likely advise against it.


-OurDMK.com



Disclaimer

The information provided by respective owner's ("we", "us" or "our) on Divorce Me Knot (referenced also as "DivorceMeKnot.com", "dmk", "DMK", "OurDMK.com", "OurDMK", "application" or "site") is for general informational purposes only and is subject to change with or without notice. All information on our site and application is provided in good faith, however we make no representation, guarantee or warranty of any kind, express or implied, regarding the accuracy, validity, adequacy, reliability, availability or completeness of any information on the site or application.

The information in articles and all content on this site should not be considered psychological or behavioral health therapy, counseling or legal, financial, real estate, mortgage, insurance or professional advice. It should not be used in place of professional advice from a licensed professional or credentialed expert. Providers of content on this site, herein known as "Contributors" (inclusive of, but not limited to writers, bloggers, editors, employees, developers, graphic designers, advertisers, partners, affiliates, references, experts, professionals and site owners) are not legally liable for any misinformation, errors or omissions. Names, details and images may have been changed in the content of this site.

Under no circumstances should DMK and/or it's Contributors have any liability to users of the site for any loss or damage incurred to users as a result of the use of this site or application or reliance of any information provided on the site or application. Use of the site or application and reliance on any information from the site or application is solely at the user's own risk.

For complete site disclaimers review "Disclaimers" on this site or click the link below.

Read Complete Site Disclaimers Here