In the first part of this series on marital contracts, we discussed agreements that are entered into in anticipation of marriage – more commonly known as pre-nups. For the second part of the series, we are going to focus on agreements that are entered into because of divorce, also known as separation agreements.

What is a Separation Agreement?

Separation agreements often come about when a couple decides to end their marriage and go through a divorce. Rather than go through the time and expense of having a court decide property distribution, spousal support, and/or child custody or support, a couple may decide to handle those matters between themselves and enter into an agreement outside of the courtroom. Divorce court can be pricey, so a separation agreement can help a couple save time, money, and energy during an amicable separation.

A separation agreement often settles similar issues that a court would when it comes to a divorce. For example, the spouses may decide how much spousal support, if any, one of the spouses receives. The agreement could also lay out who gets the marital home, and how the couple will split custody of the kids.

States vary on what subject matters can be decided in a separation agreement. Maryland, for example, will allow matters relating to children to be agreed upon in a separation agreement. However, the court reserves the right to change the agreement if it believes the agreement doesn't have the child's best interests at heart. Maryland also has specific laws regarding the ability to modify provisions related to spousal support or alimony in a separation agreement.

Validity and Enforcement of Separation Agreements

Like pre-nuptial agreements, separation agreements are contracts. Therefore, the rules of contract law apply and can determine the validity of the agreement.

What aspects of contract law are important when considering the validity of a separation agreement?

As is the case with entering into any type of contract, a separation agreement must consider:

• whether there was consideration,
• whether there was some kind of fraud or duress that would make the separation agreement unenforceable, and/or
• whether the agreement complies with the Statute of Frauds (a contract law rule that certain categories of contracts must be in writing to be enforceable).

The enforcement of separation agreements can also vary. A major factor for determining how the separation agreement will be enforced is whether the agreement is incorporated into the court's final decree of divorce. The enforcement power of the separation agreement is stronger if it is incorporated by the court. Once the agreement is incorporated, it is considered to be an order by the court. Therefore, if one party fails to abide by the agreement, that failure can be considered contempt of the court. On the other hand, if the separation agreement is not incorporated, it can be enforced as a regular contract.

Laws regarding separation agreements vary from state to state, particularly because both family law and contract law vary from state to state. Most states recognize and enforce separation agreements, but it is important to consult an attorney familiar with the laws in your state to ensure that the separation agreement is fair and favorable to you and to ensure that it will be enforced. The attorneys at Patriots Law Group have extensive experience handling various family law and divorce matters. Navigating a divorce can be time-consuming and emotionally difficult — call Patriots Law Group today to see how we can help alleviate stress and time for your family.

DISCLAIMER:  The information above is for informational purposes only and is not intended to serve as legal advice for any particular situation.  No attorney-client relationship is intended or created by this information and may not be relied upon based on the above-statements.  Each individual situation is different and therefore a consultation is necessary before any advice can be relied upon as appropriate and accurate for your situation. Please call Patriots Law Group at 301-952-9000 to set up a consultation if you wish to obtain specific legal advice concerning your situation.