Separation agreement question

[lostdad]

Hello,

 

My wife has requested a trial separation. She wants us to create a separation agreement.

 

My question is this. Do we have to iron out all typical divorce issues (such as division of assets) in the agreement? Or can we only focus on immediate things (like child custody and child support)?

 

Thanks in advance.

[2sure]

Unless the agreement is legally recognized in lieu of filing for divorce it isnt a document that can be binding. In any case, since this is a "trial" separation - which may or may not lead to divorce:

 

You should seek the advice of an attorney so that you do not put into place anything that will create a "past practice" and be a disadvantage to you should divorce proceedings be initiated by either one of you.

[lostdad]

Thanks for the reply.

 

My understanding from her is that the agreement would be a legal document notarized or signed by an attorney (?)

 

I was hoping to deal with the here-and-now stuff in this agreement and, IF a divorce becomes the next step, then we agree on the separation of assets and other things.

[sumdude]

A separation agreement is the cornerstone of the divorce itself. It's where you start dividing assets, liabilities and custody. Not to be taken lightly. Talk to a couple lawyers, you can usually get a free consultation to begin with. Don't let her run the whole show. This is big legal stuff which will affect your future. If possible the two of you should iron out the general details first then have a lawyer draw up the papers.

[2sure]

Divorce can be tricky and depending on the state you reside in , certain terms of the separation have to be met as a requirement of that states divorce procedure. So, you want to make sure that in the event you decide to divorce , your separation will meet those requirements.

 

Next, anything can be notarized . The thing is..."trial" is a LOT different than real...you may change your mind about what you are willing to live with temporarily and what will work permanently. For example - say that because you dont want to unsettle the children , you decide that is is best for them to stay in the family home with their mom and you move to a nearby apartment. BOOM. You have left the home and established residence elsewhere. It could be her house now. Say because you only have a small apartment you decide to visit the children at the family home instead of taking them to your place...BOOM - you are unable to care for the children unsupervised or independently.

 

Thing is - what you establish as routine during your "trial " separation could be used " past practice" in divorce court...as in, the courts will decide that whatever the kids have become used to is what will stand.

 

See an attorney. Not together. Protect yourself just in case, thats the best thing.

[lostdad]

Thanks. We're really trying to go about this amicably. I get to stay in the house and she and the kids would move out.

 

My wife says she only wants child support (feels she doesn't deserve alimony). Even the child support figure I calculated is pretty high.

 

The only thing she thinks she would possibly be entitled to is a portion of the house (don't know if that means when sold, or if I would have to buy her half out now at current market price).

 

Again, we are bending over backwards to make sure there is no animosity/conflict. We really haven't gotten far in talking about finances, but I want to be ahead of the game.

[sumdude]

Thanks. We're really trying to go about this amicably. I get to stay in the house and she and the kids would move out.

 

My wife says she only wants child support (feels she doesn't deserve alimony). Even the child support figure I calculated is pretty high.

 

The only thing she thinks she would possibly be entitled to is a portion of the house (don't know if that means when sold, or if I would have to buy her half out now at current market price).

 

Again, we are bending over backwards to make sure there is no animosity/conflict. We really haven't gotten far in talking about finances, but I want to be ahead of the game.

 

Good that it's amicable so far. Try to keep it that way for sure. Best for everyone involved and a loss less expensive when it comes to lawyers. Once you each have a lawyer and they start battling instead of you and you wife working it out beforehand the billable hours go way up.

 

Don't be surprised that when/if you do find yourselves going down the road of divorce that she gets a bit more aggressive. So if you can hammer out an agreement now while she's being reasonable then do it amicably with a lawyers help. The sooner you take control of the process (as well as include her) the better.

 

Every state is a little different legally. But generally any any real or financial assets and liabilities gained during the marriage are evenly split. Particularly if both parties were full time employed. This includes savings, debt, real estate, general belongings and even retirement accounts. Of course some of it is hard to enforce.

 

In my case we had marital debt that was incurred. At first she talked about helping to pay it off. She later changed her tune and I was stuck paying all the debt off myself. All the accounts were in my name only and it would have cost more in legal fees and time to get anything out of her than to suck it up and pay it myself.

Edited October 4, 2010 by sumdude

[The-Zen-Warrior]

lostdad :

 

Forgive me for creeping in here, like some sort of dark cloud, but a "trial separation" W.T.F. is that? Is this like some sort of "dress rehearsal" for the real thing?

 

This is the first time in all my 40 years being on this planet, that I've ever heard of someone engaging in a "trial separation"! Why not go for the real deal? Why play "pussy foot" and "flirt" and or "tickle" the subject, why not just do it?

 

I don't know, in my case I know I wouldn't have been comfortable with a "trial separation", not a wise choice to try a trial separation from a cheating spouse! But if this works for you, I guess more power to you!

 

I would seek out the advise of an attorney, and just know that everything that is done by both parties during this "trial separation" more than likely could be used against the other in a court of law. Make your choices well, document everything, anything signed by both parties should be immediately notarized, to make the document "legal"!

 

Good luck, please keep us updated as this plays out, I'm very curious to see how a "trial separation" works out.

[sumdude]

lostdad :

 

Forgive me for creeping in here, like some sort of dark cloud, but a "trial separation" W.T.F. is that? Is this like some sort of "dress rehearsal" for the real thing?

 

 

 

I wasn't going there .. but yeah in most cases once you separate it's usually just a precursor to divorce. Pretty hard to save a marriage once you're living separately and the instigator of the 'trial separation' has ... ahem.. 'privacy' away from the stbx.

[carhill]

OP, a legal separation is the same as a divorce, wrt the material facts, findings and judgments, *except* you cannot remarry legally. Only after you are divorced can that happen. You apportion support, property and custody issues just as if you were divorcing, legally. Think of it as the most painful post-nuptial agreement you've ever signed, or a colonoscopy, as you prefer

 

Now is the time, and yes I've read your past threads, to get real, expensive, proper legal advice and move forward. You and your wife may be amicable at this point, and perhaps you will always be amicable (that's great!) but the issues in your case are complex enough and others (your children) depend on this being done legally and properly.

 

Best wishes and my sympathies...

[tank]

Lost Dad, The separation agreement will need to spell out every aspect of your life. Division of assets, custody, child support etc. You can set timelines in it. So if you dont want to sell your house for example, you can leave it as you paying all bills as your living there, but she is responsible for taxes etc. but no decision on the sale of home until a specific date etc. Make it look like you have some hope for a rec.

 

I am kinda curious to know why you get the home and her and the kids are moving out? The children should stay in the family home, less disruptive on them. Also, if your able, I would go for shared custody, where the kids are with you 50% of the time. If you keep the home and 50% custody of the children, no child support. Dont back down from your rights as a father. Do not cave in, and you can do this calmly without upsetting her. I dont kow the details yet on your situation, but it sounds like she wants something else. Very important, make sure your agreement stipulates no overnight visitors when children are present and no introducing to new boyfriends or girlfriends for a certain time period. I missed this one and it caused me and the children a great deal of pain. If she doesnt agree to that, then this trial separation is a sham and you need to pull out the big guns and go for it all.

 

Best of luck.