A Separation Agreement is a contract that is drafted by counsel to reflect the various agreements of the two parties to the terms of a divorce. The word “Separation” is a bit misleading, as the stated intention of the document is to have it be presented to the Court as the terms of the divorce. Depending on how the terms of the agreement are written, the agreement can be either totally or partially binding or can be a totally or partially modifiable. A Separation Agreement must detail the agreement reached on a large number of topics, such as support, division of assets, taxes, health insurance, parenting plan, etc.
A Separation Agreement must be executed by both parties, in front of a notary, and approved by the Court for it to become enforceable. Generally speaking, once a Separation Agreement is reached, the parties and counsel must appear before the Court to have their agreement approved. At that time, the Judge will review the documents filed, ask any questions she/he may have and ask the parties to answer certain questions under oath regarding such matters as if they signed voluntarily and believe the agreement to be fair and reasonable under the circumstances. At that time, the Separation Agreement usually becomes part of the Divorce Judgment. However, the judge has an absolute legal obligation to find that the agreement is fair and not the result of coercion. Therefore, the judge can refuse to accept an agreement if she/he believes it is unfair, or if a topic is not addressed, or if he/she thinks you did not sign voluntarily.
We believe it is very important for parties to work towards a settlement. Everyone must think about the fact that an agreement reached by the parties may well be much more satisfactory than one decided by the Judge.
If an agreement is not reached, the matter must be decided by trial which entails enormous costs, both emotional and financial. People are put in positions where they spend tens of thousands of dollars and often either testify in ways that further damage the relationship and/or are extremely stressful. If a trial can be avoided, it should be, especially if there are children.