A well respected, award winning social enterprise
Volunteer run - Government and charity funded
We help 50,000 people a year through divorce

01202 805020
Mon/Fri 9am-8pm       Sat/Sun 2pm-8pm
Call for FREE expert advice & service info

seperation agreement

  • shazza
  • shazza's Avatar Topic Author
  • Platinum Boarder
  • Platinum Boarder
More
12 years 5 months ago #20939 by shazza
seperation agreement was created by shazza
Hi

Myx2b has suggested we try to draw up a seperation agreement ourselves as we are still living under the same roof but want to start sorting things out. We are going to try to sort things out ourselves before we get solicitors involved. Does anyone know how to go about drawing up a seperation agreement. Is there a template we can use - what should be included. Also although we live seperately under the same roof we still have joint bank accounts as I am a student and therefore not earning, however, I still do all the food shopping and shopping for the children. Should we have seperate bank accounts and how would this work - or should I wait until we have agreed our finances and maintenance?

Please Log in or Create an account to join the conversation.

  • rubytuesday
  • rubytuesday's Avatar
  • Moderator
  • Moderator
More
12 years 5 months ago #20945 by rubytuesday
Replied by rubytuesday on topic Re:seperation agreement
Hi Shazza

A seperation agreement is a private contract between separating spouses resolving issues of joint, family or marital property or assets, support and child responsibilities.

When spouses decide to end their marriage or lengthy cohabitation, particularly when children have issued from their relationship, the unwinding of what was supposed to be a \"until death do we part\" contract, can be quite complex. Spouses frequently purchase assets jointly or in circumstances that make it difficult to determine who owns what. Many jurisdictions impose a community of marital property regime between married spouses. Whatever has been acquired during the marriage by either party may belong equally to both.

Spouses generally share child-rearing responsibilities which becomes impractical if they suddenly find themselves living no longer in a single, unified residence, but in two separate residences.

A relationship of economic dependency may have developed, one spouse on the other, often caused by extended parental leave by one of the spouses in order to provide full time household or child-rearing responsibilities to the family, thus sacrificing his or her career.

At the end of the day, it is up to the court to disentangle separating spouses unless they can agree between themselves by separation agreement.

Spouses are at liberty to resolve issues arising as a result of their separation by way of a private contract between themselves, a separation agreement. Litigation is very stressful, expensive in legal fees, public and, worse, the issues are resolved by a stranger to the marriage - a judge, who will impose a resolution based on an adversary justice system, not usually conducive to the peaceful legacy separating parents - and more so their children - desperately require.

Negotiating or the mediation of a separation agreement costs considerably less money than divorce proceedings.

A good family law lawyer will do everything in his or her power to attempt to negotiate or foster the negotiation of a separation agreement on behalf of his client. Sometimes, however, separation agreements are not possible because of the personality of the other lawyer (this actually happens a lot), or the personality of one of the two separated spouses - some people just need their day in court.

In most cases, a properly prepared separation agreement will pre-empt any party's attempt to have an issue that was resolved in the agreement subsequently litigated (lawyers call this an estoppel); unless there has been a substantial change in circumstances which might attract the court's attention do an amendment, especially as regards children or support.

Because separation agreements are essentially contracts, and barring a statute to the contrary in any particular jurisdiction, they do not need to be in writing but given the tinderbox circumstances in which they would probably develop, a verbal separation agreement may not be worth the paper it is written on!

There are do-it-yourself kits available for separation agreements but you would be \"penny wise to be pound foolish\" to attempt it without the assistance of an experienced and knowledgeable family law lawyer. There are many pitfalls and complex areas in family law such as spousal support and pensions. An error in properly identifying property rights in a separation agreement, or failing to note the intentional omission in the other party's do-it-yourself draft, could mean a significant financial difference to the trusting but naive spouse, in their old age.

A separation agreement has to be signed by both parties. I once had a client spend a fair amount of money with me developing a separation agreement which I assumed he was going to present to his ex-spouse. When I was done the draft, he was stunned to find out that his ex-spouse had to sign it as well!

You cannot get a divorce by separation agreement: that requires a court order but it is a breeze if all that is left is the actual divorce order.

A well drafted separation agreement will allow for future amendments by either direct written change by both parties or a process of mandatory mediation or, as a final alternative, resort to the courts.

Ruby

Please Log in or Create an account to join the conversation.

  • Fiona
  • Fiona's Avatar
  • Platinum Boarder
  • Platinum Boarder
More
12 years 5 months ago #20951 by Fiona
Replied by Fiona on topic Re:seperation agreement
Which jurisdiction are you in, England&Wales or Scotland?

Please Log in or Create an account to join the conversation.

  • shazza
  • shazza's Avatar Topic Author
  • Platinum Boarder
  • Platinum Boarder
More
12 years 5 months ago #20958 by shazza
Replied by shazza on topic Re:seperation agreement
Hi fiona

I live in england. What we are trying to do is agree on as much as possible especially when it comes to the children, before we go to a solicitor to save time and money. What should we have prepared agreed to make the most of solicitor time? What would be advisable not to agree to until I have spoken to a solicitor?

I hope this makes my situation clearer.

Please Log in or Create an account to join the conversation.

  • Fiona
  • Fiona's Avatar
  • Platinum Boarder
  • Platinum Boarder
More
12 years 5 months ago #20961 by Fiona
Replied by Fiona on topic Re:seperation agreement
Unless the situation is very simple (short marriage, no children, no assets) I think it is always a good idea to see a solicitor early on to find you where you stand and what your options are even if you then decide it's only a once off. Care needs to be taken in choosing a sol but there is nothing much worse in souring relations than agreeing something, then finding you've undersold yourself and wanting to change your mind.

Unless you have sought legal advice and there has been a full disclosure of assets a separation agreement doesn't really hold water. Once you understand where you stand it is possible to sit around the kitchen table and reach an agreement that works for both parties then have sol draw up a separation agreement. This has a much better chance of standing up in court, but really for the agreement to be watertight the only way is to draw up a consent order and have it sanctioned by the court.

Please Log in or Create an account to join the conversation.

  • trouty
  • trouty's Avatar
  • Junior Boarder
  • Junior Boarder
More
12 years 5 months ago #20979 by trouty
Replied by trouty on topic Re:seperation agreement
Does a separation agreement have to make reference to Spousal maintenance claims now or in the future ?
My wife and i of 21 yrs want to split - she wants 50% of house value /contents etc (est £60k) and half my pension (est 115k current value each).
She has not mentioned spousal maint at all.
I wil support our 17yr old son through college /Uni by him staying in the house taht i plan to remortgage to get her the cash.
She is however currently unemployed -- but has worked previously for 12 ys continous unti l Feb 08 (now off sick after Hysterectomy /back issues etc 12 months ago)
Will i have to pay her SM at all if she does not ask for it ?

Advice please ?

Please Log in or Create an account to join the conversation.

Moderators: wikivorce teamrubytuesdaydukeyhadenoughnowTetsSheziLinda SheridanForsetiMitchumWhiteRoseLostboy67WYSPECIALBubblegum11