Separation Agreement Defined
A Separation Agreement is a legally binding contract that resolves the issues of a marriage, including issues of property division and spousal maintenance. A Separation Agreement is in essence a marital settlement agreement, however it is entered into during a period of separation (and before the entry of absolute divorce) rather than at the time of a divorce. Therefore it can be used in place of a divorce if a couple wishes to be legally separated but not legally divorced. It is important to note that the terms of a Separation Agreement are only fiduciary until sometime around the entry of a Judgment of Legal Separation and at which time they become binding.
If parties are married and they choose to enter into a Separation Agreement, this agreement is usually for a fixed period of time . Parties can elect for a trial separation where they live separate and apart during the term of the agreement to test the waters and see if the marriage is worth saving or they can enter into the agreement with a set intention of divorcing in the future. A judge will not need to approve the terms and conditions of the Separation Agreement since this is a private legal contract that is unlike an Agreed Judgment for Dissolution of Marriage where the parties marry at the courthouse and obtain a divorce, proceeds with the divorce, then leave. Typically these agreements are used with long-term marriages where the parties have substantial assets, investments, and other financial intricacies and they want to maintain the status quo until they decide what to do about the marriage- this is particularly important in high asset cases.
Key Elements of an Illinois Separation Agreement
As with marital settlement agreements, separation agreements in Illinois typically cover the five main points when people are divorcing whether they are getting divorced in Chicago or some other area of Illinois. Those five points are division of assets and liabilities, maintenance/spousal support, child support, parenting responsibilities/parenting time, and attorneys fees.
A separation agreement addresses in a comprehensive way:
- Proposed parenting time with your children;
- Allocation of parental responsibilities;
- Amount of child support that one spouse pays the other spouse or direct to the child;
- Payment of maintenance/spousal support, also known as alimony;
- Division of assets between the spouses and division of liabilities between the spouses and the payment of debts by each spouse;
- Waiver and in some cases, release, indemnification and hold harmless provisions for a spouse in favor of the other spouse
In addition to addressing these issues, sometimes a separation agreement will have boilerplate language that addresses a definition section, provisions for a sale of the marital residence (if it hasn’t been sold before you enter into settlement discussions), provisions regarding the transfer of vehicles, the parties’ obligations to one another with regard to the children’s medical and school expenses, tax liability and exemptions, and an award of attorney fees and costs among the parties.
Requirements for a Separation Agreement to Be Legally Enforceable
A Separation Agreement is a contract. It must be written, signed by both parties and notarized or witnessed to be a valid and enforceable document. The court need not approve of the terms for it to be valid. However, there is always a risk that in future litigation as to the dissolution of the marriage that the opposing party will claim that he or she was taken advantage of or did not understand the separation agreement terms. Accordingly, if you choose to enter into such an agreement you do so knowing that you are essentially agreeing to give up your day in court and any rights that may otherwise be subject to judicial review.
Drafting Process for a Separation Agreement
The process of drafting a separation agreement is one that should preferably begin with an attorney. Illinois courts require couples to "informally attempt" to resolve the terms of their separations before filing for divorce; this effort is known as a pre-decree or pre-filing informal disclosure agreement.
Similarly to a prenuptial agreement, each separation agreement includes specific disclosures and provisions; for the legal separation process, these documents are used to ensure that all assets and care for children have been planned out. The legal counsel of the individuals preparing to separate can help them negotiate the terms of their separation agreements. If an attorney is in the right for one person but not the other, one option is to hire a mediator. Mediation services are a particularly valuable resource for Illinois couples who have not yet filed for divorce. These services focus on minimizing the discord between couples during the legal separation process, with the goal of drafting a mutually beneficial agreement. However, mediation is not always appropriate. If you do not believe that you or your spouse will be able to work through the terms of your separation together, hiring your own legal counsel is an investment.
Separation Agreement vs. Divorce: A Comparative Analysis of Pros and Cons
A separation agreement is an agreement entered into by a married couple that alters their marital rights, but does not necessarily terminate the marriage. In Illinois, pursuant to 750 ILCS 5/102(22), a married couple is married "until a judgment of dissolution…is entered." By contrast, a divorce (also known as a dissolution of marriage) is the judicial termination of a marriage.
The main difference between separation agreements and divorce is whether the marriage itself remains intact.
Pros: Separation agreements offer the benefit of allowing the parties to remain married while terminating most other obligations of married persons, such as alimony and all property distribution obligations (subject to judicial review in the event of death or removal from the State) . In addition, a married couple’s benefit plans covered by ERISA are governed by state law (the Illinois Marriage and Dissolution of Marriage Act) and not ERISA, which limits the enforceability of these plans.
Cons: A major drawback of separation agreements in Illinois is that some courts may not recognize a separation agreement to be a binding contract and may require further action for enforcement if it appears that the agreement is in the best interest of the couple. In addition, until a married person is deceased or the marriage is otherwise terminated by court judgment, both parties’ debts are still jointly held, rendering many credit protections meaningless.
How to Enforce and Modify a Separation Agreement
Under Illinois law, separation agreements are generally enforceable contracts. A circuit court, however, cannot enter an order incorporating an agreement until it has determined that the agreement is not against public policy or the best interest of the children. 750 ILCS 5/502(e). If the Separation Agreement has been incorporated into an order of judgment for dissolution of marriage or legal separation, a petition to enforce the order must be filed. 735 ILCS 5/2-1301; 735 ILCS 5/2-1301.5. If the court determines that the party seeking enforcement has willfully failed to comply with the provisions of the order, the court may find the party in contempt and hold them in indirect civil contempt. 735 ILCS 5/2-1301.5. A finding of indirect civil contempt requires the court to set forth the basis for the finding. In addition, since the court cannot enter an award of attorney fees in contempt proceedings under Illinois law, the contempt order does not contain an award for attorney’s fees, but rather, the attorney’s fees are separately petitioned for, in addition to finding of contempt.
Separation agreements are not modifiable at the will of the parties. At any time after entry of a judgment for dissolution of marriage or legal separation which incorporates the agreement, either party may petition the court to modify provisions relating to maintenance or property disposition so as to make them consistent with the provisions of Section 510 of the Illinois Marriage and Dissolution of Marriage Act 750 ILCS 5/501. A provision of a separation agreement is not subject to modification by the court if it is not relevant or does not affect the right to maintenance unless the separation agreement itself expressly reserves the right to seek modification on account of a subsequent substantial change in circumstances. 750 ILCS 5/502(d). Even where the terms of a Separation Agreement do not reserve the right to seek a modification of terms, a provision with respect to the care, custody, education, health, or support of children may be modified by the court upon petition of one or both parties upon a showing of changed circumstances so that the children would no longer benefit from continued application of that provision. 750 ILCS 5/502(g). In addition, a provision of a separation agreement pertaining to the division of property may be revisited by the court if it is based on a mistake of fact by the parties, and the court finds that the mistake directly relates to the field of family or child law and that the resulting merits of each party’s substantive right demands a revision. 750 ILCS 5/502.1.
When to Consult with an Attorney Regarding Separation Agreements
If both parties are reasonably amicable and there are no asset or child issues that need to be reconciled, a do-it-yourselver can sometimes use an internet based service to get most of the way there. However, it is always wisest to consult a lawyer about a separation agreement, if you have property or debts, are concerned about child-related issues or want to customize the agreement beyond what the forms on the internet provide.
Whether you are in Illinois or any other state, a consultation with an attorney experienced in family law is always in order if you have any questions about what is appropriate under the circumstances. We get a lot of clients coming to us after trying to do a separation agreement on their own and wanting us to tell them why what they worked out legally doesn’t seem fair or what they want and when we are able to do so, they wind up spending a lot more money than if they would have come to us first. We provide it at a reasonable and predictable price per task so that people don’t have to guess how much a consultation or contract with us to draft or review . The other thing to consider is that if you do not live together, how will you get your spouse to sign the agreement, if they are adversarial, without having an attorney? If you have a general practice lawyer, ask if they will prepare the agreement and if so, how much they will charge. Sometimes it could be as little as $250 for a premarital agreement, or as much as several thousand. Once the basic outline of the divorce and the proposed terms are settled, a qualified family law lawyer will prepare the agreement according to Illinois laws and the specific needs or desires of the parties. Many lawyers have their own version of a boilerplate agreement, which can be tweaked as needed to reflect the particular situation of the parties. This is completely legal, but again, not often wise. The parties will be asked to review the agreement, make changes to language if desired, and initial changes. The attorney will then make any agreed upon revisions and prepare final version.