Legal Recognition of
Marital Separation
Streamlining the Divorce Process:
If the separation period is unsuccessful in bringing the couple to reconciliation and divorce becomes the only option a good marital separation agreement can streamline the divorce process. The separation agreement can provide the court evidence of when the parties actually separated. The agreement can also be the basis for the division of property, debts, parenting responsibilities, and custodial arrangements. The benefit is that the court can better recognize and give effect to the interests and desires of the parties.
Flexibility and Timing of Agreements:
There is no need for a marital separation agreement to be filed with the court for it to be effective. Also, a marital separation agreement may be entered into at any time. Therefore, there is no requirement that the parties enter into such an agreement before filing for divorce. It is possible that as divorce proceedings are ongoing the parties determine a marital separation agreement would help protect their interests as opposed to leaving everything to the discretion of the court.
Importance of Provisions in Agreements
Some provisions of a marital separation agreement are more important in some circumstance than in other circumstances. For example, a marital separation agreement can survive the divorce judgment as a separate contract, or it can be merged and incorporated into the divorce judgment. If the marital agreement remains separate it may only be modified through agreement of the parties (as with any contract). On the other hand, if the agreement is merged with the judgment it would be possible for a party to bring a court action to modify.
Considerations for Custody and Visitation:
Therefore, if the agreement only concerns custody and visitation of children, it would not make a difference if the marital agreement survives or is merged. However, if the marital agreement includes provisions for child support or spousal support it may be important that the agreement survive judgment.
Protecting Child and Spousal Support Provisions:
Ensuring that the agreement remains separate or merged with the divorce judgment can impact the enforceability and modification process of child and spousal support provisions, highlighting the significance of careful consideration and drafting in marital separation agreements.
