A separation agreement is a form of domestic contract between married or common law spouses, which is negotiated, prepared and signed when a couple decides to separate. The agreement is meant to to settle any property, debt, child custody, child and spousal support, insurance, tax, and access or visitation issues that may lie between them. The above mentioned issues are typically the most significant and are often at the forefront of most agreements. Each agreement is unique, however,  and can address other issues a couple believe are important, such as who will care for the family pet, or what religion the child(ren) will practice. Most family law lawyers will be able to provide you with a list of issues typically addressed in a separation agreement. You can see a sample of such a checklist here.

Is a Separation Agreement the Same as a Co-habitation Agreement or Marriage Contract?

A prenuptial agreement or Marriage Contract is created before or after the wedding and is the domestic contract that governs a couple during their period of co-habitation, if applicable, and during and after their marriage. It essentially redefines and highlights the rights and duties of the spouses that are already expressed or implied by the applicable law in the jurisdiction in which the couple resides. The prenuptial agreement is signed before a marriage. This type of domestic contract is often entered into when one spouse has a lot of money and/or assets and does not want to risk losing that money due to a marriage and subsequent divorce.

A separation agreement, on the other hand is a "postnuptial" agreement is signed in contemplation of divorce and at the end of a marriage. The separation agreement is the document which sets out, in words, and as a binding contract, exactly what the terms of the separation and eventual divorce will be.

Do You Need a Court Hearing to Have a Valid Separation Agreement?

You do not have to have a court hearing to divide property or deal with issues regarding your children for the purposes of your separation agreement. If you negotiate, prepare and sign a separation agreement on your own, or even with the assistance of lawyers, the terms of that agreement can be incorporated into the terms of your divorce. If your separation is relatively amicable, and has dealt with the issues regarding the children (such as custody and child support) and if you and your spouse have both signed the separation agreement, the judge will grant your request to incorporate the terms of the separation agreement make it part of your divorce order.

Do You Need a Lawyer to a Prepare a Separation Agreement?

It is possible to settle your affairs without a lawyer. A lawyer does not need to create or sign your agreement to make it any more legal.The law does not require that a lawyer to prepare a separation agreement. Some couples, in order to save money, try to prepare their own separation agreement without a lawyer. Many believe that having a lawyer will only serve to escalate hostilities that are already present during the breakup of a relationship and prefer to handle such personal arrangements as divorce, custody, support, and property settlement themselves.

If a couple can not reach an agreement on their own, lawyers or mediators can help to resolve their outstanding issues. They know the law and the rules of the separation and divorce procedure in the courts. They are also helpful in shielding their client from his or her own negative emotions, such as anger, during the proceedings. Lawyers and mediators often serve to prevent the escalation of hostilities and produce better results, and a better agreement, in a more productive fashion.

Separation agreements can be quite complex, as you might imagine. If you do decide to draft your own separation agreement it's essential that you understand what can and cannot be included in such an agreement. It is also wise to be familiar with the format and language of the agreement so as to satisfy the courts if you ever have a dispute about the agreement in the future. It is therefore a good idea to do some research and hire a lawyer to assist you.

Protect your rights with a written separation agreement. Your separation agreement will provide proof of your date of separation. Your separation agreement will clearly define your rights and obligations. When signed, and witnessed by any adult, your separation agreement is legal and binding.

Please note that this information is general in nature and not intended to be a substitute for legal advice. If you are concerned about how to go about negotiating a separation agreement following the breakdown your marriage or common law relationship, please contact a lawyer. You can get free information about how to select and retain a lawyer by getting a copy of the FREE REPORT offered at the top right-hand corner of this page. Do not sign a separation agreement without independent legal advice.