Introduction to a Separation Agreement
A separation agreement is a document that will be entered as an exhibit in your final decree of divorce (which makes it a court order so that if the other spouse fails to comply with the conditions set forth in the agreement, a litigant can seek a court order to enforce the terms of the agreement). The separation agreement is simply a contract between the parties that provides the legal framework for how where the parties will live, who will pay certain bills and some financial decisions during the pendency of a divorce case. In South Carolina, by statute, spouses are not entitled to "every day support" from one another after they have voluntarily separated.
A separation agreement can cover the following topics: In South Carolina , the law allows a party to move forward with filing for a divorce from bed and board and still be eligible to file for a simple no fault divorce 90 days after turning 18 years old, or as long as other conditions are met, on the grounds of one year’s separation (separation agreements are useful with either type of divorce). In South Carolina, a divorce from bed and board is essentially a legal separation. This is a judicially supervised living arrangement that allows for a more structured approach, setting out in more detail the rights and responsibilities of the parties. Separation agreements are especially important if there are children involved in the family dynamic or there is income to be divided between the parties. A separation agreement is not a divorce decree – it is a contract between the parties. The divorce decree is the court order signed by the family court judge.
Requirements under the law in South Carolina
In South Carolina, a separation agreement should define the terms of a couple’s separation and relationship with respect to children and assets rather than having those terms adjudicated in a divorce action. The separation agreement is entered into by the parties prior to the filing of a proceedings for divorce on the ground of one year’s separation. The execution of the separation agreement will demonstrate to the court that the parties have lived separate and apart for at least one year pursuant to S.C. Code Ann. § 20-3-180(2). A separation also requires the obtaining of a no fault divorce on the ground of living separate and apart for one year pursuant to S.C. Code Ann. § 20-3-180.
The terms of a separation agreement must be agreed upon with full voluntary consent. The agreement cannot subject a party to fraud or overreaching by the other party. A separation agreement to be valid should contain the signatures of each party and usually of two witnesses. Although a separation agreement is an arrangement between the parties, the written agreement is signed by the parties before a notary public with witnesses so that the written agreement could be found by a court to be binding on the parties.
Important elements of a Separation Agreement
While South Carolina law does not require parties to execute a Separation Agreement before seeking a divorce, many or most people do so. Most separation agreements include the following provisions:
Property Division
If you and your spouse have made any agreement regarding the division of your property or liabilities (debts), a settlement (separation) agreement will be a good way to protect yourselves from being surprised by new claims after your divorce. As you may know, marital property is subject to equitable division by the Family Court in the event the parties divorce. Equitable division does not mean equality. But without making a prior agreement with your spouse, you will have no way of knowing exactly what the Family Court might do with regard to distribution of your property and debts. If you both agree on a plan, a written agreement may be the best way to make certain your property settlement is final.
Child Custody
Many parents make agreements between themselves regarding custody and visitation before filing for divorce. If your agreement is very clear about each parent’s responsibilities, provide a specific schedule for visitation, and designate who will pay child support, your Separation Agreement could be a great way to protect you – and your children.
Alimony
The Family Court has broad authority to determine if alimony is appropriate and how much should be paid. Many factors apply, as set forth in S.C. Code § 20-7-473 and S.C. Code § 20-7-681. As a result, many Couples seek to resolve alimony by agreement prior to filing for divorce. Agreements for alimony should be very clear about the amount and duration. You should also consider discussing the possibility that the Separation Agreement could become part of a Consent Order of the Family Court. If you anticipate the court might become involved again in the future for any reason, a Consent Order may protect your agreement from being changed by the Family Court.
Time-Share Agreements
Some parents will complete a written time-share agreement, which is particularly important where one parent is relocating to another city or State with the children, but one parent will have substantial visitation rights. The agreement should set forth where and when the children will be spending time with each parent. The time-share agreement can be binding on the parents, but it cannot be made into a court order until a Family Court judge signs off on it.
Health Insurance
Your separation agreement should contemplate who will maintain health insurance coverage for the children. If the children reside with one parent the majority of the time, that parent typically will carry health insurance for the children. But if the parents have agreed otherwise, then it may be in the interest of the children to have that spelled out in the Separation Agreement.
Retirement Assets
Sometimes parties have large retirement accounts, but do not desire to split the accounts in half. One way to address this issue is by agreeing to waive any claim on the other’s retirement account, in exchange for keeping another property acquired during marriage. For example, perhaps one spouse will keep a retirement account in exchange for the other spouse retaining an asset of significant value, such as household goods, jewelry, furniture or furnishings, insurance policies, or artwork.
Advantages of having a Separation Agreement
One of the greatest benefits of having a legally binding separation agreement in South Carolina is that it can clarify the responsibilities of both parties and also act as a means of protecting your individual rights in the event something should happen after the separation. If you have minor children, a legally binding separation agreement can provide immediate instruction on child support and visitation, as well as responsibility for insurance and healthcare for the children.
A separation agreement can be helpful in many other regards. Many times if one spouse has worked for the same company for a number of years, they may or may not be entitled to retirement benefits. A separation agreement can establish the rules and regulations about the distribution of that retirement asset and any other employment-related benefits that one or the other spouse may be entitled to in the event of a divorce.
A separation agreement can also protect the parties involved from any financial obligations stemming from the other spouse’s debts. For example, it would exclude one spouse from the other spouses’ credit card debts. Under South Carolina law there is shared debt responsibility among the spouses. That means any money that is used during the marriage is the responsibility of both parties involved. A separation agreement can protect you from those liabilities and entanglements.
Negotiating the terms of your Separation Agreement
Entering into separation agreement discussions can be a minefield for future litigation issues. Your lawyer’s job at this phase is to make sure you carefully consider all possible issues and don’t unintentionally agree to something that could damage your case at a later date. The focus of your review of the terms may need to shift based on your particular circumstances and specific issues that may arise over the course of the negotiations. For example, you may start with a negotiation focused on custody issues, but after reaching an agreement on those terms, you may need to revisit support or asset issues now that you know more about your spouse’s position and see how they fit with each other. You may need to review the agreement several times to get it right.
In most instances the parties are negotiating directly and the process is not formally mediated through a neutral third party. However, mediation is always an option for the parties if they are unable to reach agreement directly or if a neutral third party may be helpful in advancing the discussions with suggestions or options to consider. Oftentimes , there will be turnover amongst advocates, so be sure that you review the terms of the final agreement so that your previous advocate’s "blessings" are passed along, but also be aware that you may need to take another look at some of the issues as direct knowledge of your case will help your new advocate to continue moving forward.
Cooperation is the key to a successful negotiation. In order to have productive negotiations, it is important for parties to be open and honest with each other and treat each other with respect. It is helpful to not let the emotional and personal aspects of the dissolution of the marriage dictate the direction of the negotiations. High level emotions and animosity yield disagreements over minor issues. Addressing your legal needs while being respectful and considerate to the needs of your spouse will help to achieve a balanced agreement that encompasses the needs of both parties.
Situations to avoid with a Separation Agreement
Many people who have separation agreements prepare the documents themselves. One of the most common pitfalls is the collection of documents that the parties should be required to produce to each other. For example, if one party is going to pay the other party alimony, the receiving party should agree to produce for the payor all pay stubs and other income records. That will allow the payor to develop evidence in case the recipient is concealing income from the payor. In most cases, former spouses will be obligated under a contract to reveal their income to the other spouse as it occurs so payor can make sure the amount of alimony is either accurate or can be reduced if there is a change of circumstances. That is the best way to avoid a later dispute.
Foresight is important. If a spouse has any experience with litigation, he or she should realize that a future dispute over visitation with the child could occur because one party will relocate outside of South Carolina. That may affect the rights of the non-custodial parent. Perhaps the parties should recognize the fact that an eventual move will occur, and they should include in the agreement that the move will not affect visitation. It may be up to the custodial parent to transport the child to the other state so that the child can maintain a relationship with the non-custodial parent.
If the parties agree to something that might go wrong in the future, it is a good idea to include a "safety valve" that will prevent disputes. An example: the husband in a marriage is a big cooker who has no idea how to cook Asian food. He is married to an Asian-American woman who is unhappy because, as the primary care giver, she does most of the cooking. They might agree to eat out once a week at a restaurant selected by the wife. If that happens, it might be better to have them explore alternatives to dispute resolution. For example, arbitration. It is only binding on the parties if they agree to be bound by it or if the matter is not resolved. If there is a failure of the parties to make the selected restaurant clear, the primary caregiver could go to a restaurant not selected, and request reimbursement from the husband, or the parties could obtain the opinion of an expert in that type of cuisine.
These are some of the common pitfalls that people have when negotiating separation agreements. It becomes even more crucial where the people are assets that are businesses that have been supporting the household. When that occurs, it is even more important to have a business appraiser evaluate the worth of the business and have the spouse who does not have any experience or background with the company employ his or her own business expert.
How to change a Separation Agreement
Modifying a Separation Agreement is rare, but there are options in the Family Court. Family Court requires both parties to engage in mediation or have a Judge listen to the parties and make a decision for the parties if mediation is not successful. Assume you agree to go to mediation and you and your spouse reached an agreement on all issues. This is known as a consent order. Once the consent order is signed by the Judge, it will become the law of the case or a Judgment of the Court. In my experience, the Family Court does not like to change an Order assuming the Order was fairly negotiated. If one party does not honor or comply with the Order the other party can file a rule to show cause. This allows the Plaintiff to ask the Court to enforce the terms of the Order allegedly not being performed. However, if you feel there is new evidence or grounds to modify the Court Order, then request a hearing to address that issue or set a mediation with the other party to determine if the other party will agree to make changes to the contract terms. If the other party does not agree, then the party seeking the modification will have to prove to the Court that some change has occurred such that the court does not need to abide by the contract between the two parties. Remember that the prior divorce or support agreement was reached in a time when everyone involved in the case was in a more even position. As time passed, things may have changed rendering the existing Order no longer viable.
How to enforce a Separation Agreement
The Family Court has power to enforce a Separation Agreement, but does not have authority over all issues contained in the agreement. For instance, a family court does not have power over the time share of minor children, and it also does not have authority with regard to spousal support.
If the parties have a court order or judgment of separation, then the Family Court does have authority to enforce the agreement in the order. In the case of Anderson v. Anderson, the South Carolina Supreme Court held that the Family Court "retains subject-matter jurisdiction to enforce a judgment of separation." In the event that an issue contained in a judgment of separation is enforced, it may be enforced via a contempt proceeding.
If the parties have a marital agreement, the Family Court has no jurisdiction over any issues contained in the agreement (which includes child custody , visitation, time share and child support). The Family Court lacks the power to award alimony in virtually all marital agreements as well. Instead, a matter in dispute arising from a marital agreement must be heard in General Session Court, even if it contains issues that were final in the martial agreement. This is true because a marital agreement is an express contract, and when an express contract is breached, then the aggrieved party must have a jury trial on issues of damages, and the contempt power does not provide a remedy to a party for a breach of a marital agreement (unless the Family Court has retained jurisdiction over the issues). Additionally, the Family Court cannot award an equitable division or division of marital property of any nature, and in the case of a marital agreement, it simply has no authority to award equitable property division of any kind.
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