What Constitutes an Informal Separation Agreement?
What is an informal separation agreement?
An informal separation agreement is a written agreement signed by both spouses who are living separate and apart pursuant to a period of separation. This is an alternative to having a formal separation agreement between spouses or obtaining a legal separation through the courts. Separate and apart refers to spouses voluntarily living in different residences. In some cases, one party moves out of the matrimonial home, while in other cases, both spouses will move out of the matrimonial home. However, an informal separation agreement does not require that either party leave the matrimonial home. While spouses are living separate and apart, decisions relating to their children are made by agreement of the parties. For example, the parties may agree on custody, access and child support (if applicable). Typically, the parties will agree to share their parenting responsibilities until they reach a more permanent agreement by way of a more formal written consent order or court order . Since an informal separation agreement does not require either spouse to leave the matrimonial home, it is particularly useful for the parties who wish to try to reconcile. It also allows the parties to try arrangements such as dividing daily expenses, dividing household chores, sharing the care of the children, and so on. Having separations from time to time from your spouse may be a healthy mechanism to stay connected and to save your relationship. In addition, if the parties jointly own their home (e.g. property jointly owned), an informal separation agreement will allow them to continue to paying their mortgages together, and to address any changes relating to the jointly owned property. For example, the parties may agree that they will no longer pay the mortgage, but will instead pay rent to the other spouse who will remain in the matrimonial home.
Pros and Cons of Informal Separation Agreements
The primary benefit of an informal separation agreement is that it saves time. When a person has a separation agreement prepared by their attorney, a lot of time is spent over multiple meetings with the attorney to gather and organize financial information, discuss child support calculations and treatment of retirement accounts, then drafting the agreement and making any revisions until all issues are considered and the clients ready to sign. An informal separation agreement bypasses that process. Parties willing to share and organize the financial information are able to sit down and complete the agreement in one day, with the only professional assistance needed through their accountant or attorney. The other benefit is that the parties retain control of the separation agreement, whereas if the divorce action proceeds and they do not reach an agreement through mediation and instead go to court, the judge will have the final say as to all of the issues.
That being said, there are elements about doing an informal separation agreement that could be disadvantageous to the parties if they don’t take certain considerations into effect. For example, sometimes people do not think about the future and what could change a few years later. Social Security benefits are a good example of how having an informal agreement could be an issue when one spouse receives those benefits early or dies before the separation agreement is incorporated into a formal divorce decree. When a person accesses their Social Security benefits before the full retirement age of 66 or 67, depending on the year a person was born, their former spouse can access those benefits as well after 2 years of marriage. If a separation agreement is not incorporated into a final divorce decree, the receiving spouse may be entitled to that spousal benefit for the duration of their 10 year marriage. Therefore, one disadvantage of having an informal agreement is that neither party’s Social Security benefits will be taken into consideration.
Elements of a Thorough Informal Separation Agreement
An essential aspect that helps determine whether an informal agreement would be effective is its drafting and compliance. Such separation agreements will include the following essential elements.
Asset Division – In an effective separation agreement, the parties can agree upon the division of all their assets, including any distribution of pensions and real property settlements.
Child Custody and Support – Parties often determine the custody of their children and the "who has the child when" arrangements. They also determine the amount of time that the child would spend with any given parent. This aspect would also include the amount of child support payments. It should also contemplate for an eventual review and adjustment of the respective amounts of child support that are to be paid. Such adjustments are needed in case there was a change in the circumstances of either party.
Spousal Support – In some cases, the parties can elect to include spousal support in their agreement as well as establish an amount for that support.
Any other provision involving the distribution of assets or any other right that the parties agree to can also be included. It is up to the parties to determine the extent of the provisions of any effective separation agreement.
Legal Considerations and Enforceability
The enforceability of informal separation agreements hinges on several factors. Many couples opt for informal arrangements to avoid the time and resources that may be associated with going through a formal mediation or litigation process. Generally speaking, informal separation agreements hold up well in court. However, this is provided that both parties entered into the agreement with the understanding of its overall structure and implications. In many situations, people do not have a full understanding of their rights when they enter into informal agreements. They may enter into these arrangements as a means of showing goodwill to their spouse, without truly understanding what they are giving up.
Courts have sometimes held that informal agreements don’t meet specific legal guidelines for enforceability. This is especially true if one party did not fully comprehend the provisions of the agreement or the likely outcomes that could occur if the legal terms of the arrangement were not followed. For this reason, it’s important to work with an experienced family law attorney during the separation period.
Even more problematic are situations where one party was pressured into entering into the agreement. If the separation agreement was entered into because of coercion or undue pressure, a court may not consider the agreement enforceable. This is especially true if the separation agreement is drafted improperly, which could result in it being extremely to follow during the divorce process.
In contrast, an informal separation agreement may provide the opportunity to make a smooth split. Courts may view an amicable separation as a process that can bring about peaceable ends for all involved. For some, informal separation agreements allow the couple to move on with their lives. If you believe an informal separation agreement is right for your situation, it’s best to confer with an attorney to ensure that every possible outcome is properly covered.
How to Prepare an Informal Separation Agreement
Drafting an informal separation agreement does not have to be an overwhelming task for separating parties. The process often involves mutual give and take until each spouse is satisfied with the terms of the agreement. Once a basic framework is framed out, it is usually possible to complete the process without the need for a legal professional to draw up a formal separation agreement. However, this may not always be an option and in some cases, it is wise to consult a family law attorney to verify if all issues have been addressed and that all legal requirements are met. Here are a few steps to follow when drafting an agreement:
Agree on key terms
Preparation is key to a separation that works. This means having all of the information you need ahead of time such as income, assets, debts, health insurance, childcare needs and more. You may also wish to divide property prior to separation. By record keeping, keeping an open line of communication and using tools such as a spreadsheet or word document, couples can ensure that they are on the same page from the start .
Put everything in writing
Assuming mutual understanding of terms can lead to false expectations and unmet needs. Consider using a document template or a blank sheet of paper with a line drawn vertically down the middle to list husband’s responsibilities and wife’s responsibilities. Draft your agreement step-by-step and then double-check the document for accuracy. Once you reach agreement, this will form the basis for a legally binding separation agreement for your lawyer to draft.
Consult a legal professional
Even if drafting the agreement yourself seems like a good idea at the time, you will eventually want to have your writing reviewed by a divorce lawyer for compliance. Writing a separation agreement can be complex, and you will want to make sure all your bases are covered before signing. If, during the separation agreement drafting process, you find yourself unable to control your emotions and able to reach an agreement with your spouse, it may be wise to seek legal counsel to help you through the divorce process and help prepare a written agreement.
When to Convert to a Formal Separation Agreement
While an informal separation or mutual understanding of rights and obligations may work for a while, you always want to have one eye towards transitioning from your "understanding" to a more formal contract. So what do you look for as the right time to make the transition? Here are a few circumstances that require you to at the very least think about it:
If any of these have occurred, it’s time for you to formalize that understanding into a separation agreement (which in Pennsylvania, is not going to be a court order) or at the very least, memorialize it into some writing. If the agreement is mutual then it likely can be done quickly and easily with the parties themselves attempting to draft the agreement. It doesn’t have to be expensive and it certainly doesn’t require extensive litigation. On the other hand, this is not a DIY venture. If the terms are contested or there is any hint that the parties might not have a mutual understanding, you need to see a professional divorce attorney to protect yourself from future problems.
Practical Examples and Relevant Case Studies
Couples often enter into informal separation agreements before or after the date of separation and they do so for a wide range of reasons, some (e.g., support for a spouse, child access/parenting arrangements, pension division) being of time sensitive nature, and some more in the nature of agreed upon "house rules" such as division of property or care of family pets. Some examples of life situations where informal agreements worked well are as follows:
Case #1: Girlfriend / Boyfriend Enter into Informal Separation Agreement
Judy and Simon had been living together as a common-law couple for 6 years when they separated. They agreed that Simon would continue to move forward with his plans to pursue post-graduate studies and that Judy would support him. In return, Simon agreed to financially support their young child while attending school so that he would be able to find a better job once his education was completed. This informal agreement provided peace of mind for both of them as it worked to achieve their short-term goals.
Case #2: Spouse Moves Out of Matrimonial Home Before Obtaining Legal Advice
After the parties agreed to separate, Tom promptly moved out and began living on his own. He replaced the costs associated with maintaining the matrimonial home by paying his own rent and his share of family expenses. He did not obtain legal advice and he and his ex-partner entered into an informal separation agreement whereby Tom kept a monthly inventory of shared vehicles and listed the costs associated with them (e.g. , insurance, personal use of vehicle, etc.) and then paid his ex-partner a monthly portion of the cost based on a median percentage of all of the vehicle costs. This arrangement worked well for the couple but if they had made their agreement a little more formal in writing, they could have given it greater enforceable value down the road.
Case #3: Returning Older Children Back to the Matrimonial Home After the Date of Separation
Monica and Steve had an amicable relationship during most of their 20 year marriage. However, in addition to family court proceedings, they each spent substantial amounts of money on estrangement therapy and counseling when their 16 year old son left home to live with friends. After some time and at the urging of their son, their son returned home from living with friends where they were able to resume a conventional routine of school and activities and so there was no need for the estrangement therapy and counseling. If Monica and Steve had entered into an informal agreement under the guidance of their lawyers ruling out the need for estrangement therapy and counseling at their son’s request, millions of dollars may have been saved in therapist fees.
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