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Marital Separation Agreements Q&A

Wednesday, 29 April 2015

Marital separation agreements are a good arrangement for some. Here are some common questions we are asked by our clients.

Can I Make My Soon-to-Be Ex Pay Child Support and Spousal Maintenance Before Our Divorce is Final?

In most cases, the answer is “yes” to child support and “probably” to spousal maintenance if your spouse is the breadwinner or earns significantly more money than you.

The decision to end a marriage is often one of the most difficult choices a person will ever make in their lifetime, especially if there are children involved. Despite the rhetoric we often hear about how getting a divorce is taking the easy way out, our Colorado Springs divorce attorneys find that most of our clients struggled with the decision to leave a bad marriage for a considerable amount of time before they ever contacted us.

In fact, it is not at all uncommon to find that a parent, especially those who don’t work outside the home or only earn a small income, has contemplated leaving for months and sometimes years before coming to the decision to divorce because they simply don’t know how they will take care of themselves or their children before the divorce is settled.

Many of them rightly believe that if they leave their spouse, he or she won’t pay a cent toward support until a judge orders them to fulfill their responsibilities. In these cases, unless it is dangerous to remain in the home, it is often best to consult with a divorce attorney prior to moving out or asking your spouse to leave. Your lawyer can offer guidance to help you plan a course of action and will assist you in obtaining a legal separation decree that your spouse is legally obliged to follow.

What is a legal separation decree?

A legal separation decree is a legally enforceable marital separation agreement that serves a number of functions including:

  • Setting Child Support Orders
  • Establish Parenting Plans for Visitation, Custody, and other Responsibilities
  • Spousal Support
  • Disentangling the Finances of Separated Spouses

Marital separation agreements are best worked out through mediation because it is just human nature that we are more likely to follow a plan that we actually had a hand in creating rather than one that is imposed upon us from the outside.

This is especially true when children are involved because a professionally trained mediator will help couples work out support and visitation arrangements by keeping the interests of the children the priority.

Keeping the focus on meeting the needs of the children helps to ensure that animosity the parents feel towards one another doesn’t spill over onto their parenting arrangements. Learn more about parenting plans and parenting rights.

Sometimes, though, there is so much anger and animosity when a marriage is ending that one or both spouses are unwilling to cooperate together to come up with reasonable arrangements. If this is the case, it is best to let your attorney handle communications with your soon-to-be ex-spouse, especially if the relationship is an abusive one.

Be aware though that when it comes to establishing a parenting plan, judges like to see parents come together to look after the best interests of the children involved. If both of the parents don’t come up with a satisfactory plan together, a judge will impose one of his or her own and then both parents may be stuck with legally enforceable orders than neither one will like.

One of the most important functions of a legal separation decree is that it separates the couple financially. This is extremely important because as long as a couple is legally married one spouse can without the other’s knowledge or consent create financial obligations that both spouses are legally responsible.

A legal separation decree makes it so that, going forward, one spouse cannot create a new financial obligation for the other. From the date the decree is issued, any new debts are the sole responsibility of the spouse who incurs the debt.

The decree can also be used to freeze assets so that one spouse cannot take off with the money in a bank account, sell the house, or make any decisions regarding jointly owned property until the assets and debts are equitably distributed by the court.

What if my spouse and I are considering a trial separation? Is a marital separation agreement necessary?

At some point in their marriage, many couples hit a rough spot and decide their marriage is no longer working for them but they are not sure that divorce is the right solution to their problems. In this case, couples often choose a “trial separation” to give themselves time to decide whether a divorce is what they truly want. If this is the case with your marriage, it is in your best interest to consult with an attorney for guidance before too much time passes.

As much as you may believe that you and your spouse will eventually get back together or that your spouse would never do anything to hurt you financially, remember, divorce often brings out the worst in people. Be sure to do what you need to do to protect yourself and if you live in the area, contact the most compassionate and experienced divorce lawyers in Colorado Springs at Marrison Law for a free consultation.

Once you have a legal separation decree in place it can be changed to a divorce decree as is, or it can be used as the starting point for a divorce decree, if you and your spouse later decide to go ahead and divorce.

My spouse and I no longer want to live together but, for religious reasons, we don’t want to divorce. Do we need a legal separation agreement?

Yes, you absolutely need a separation agreement to protect yourself financially. If for religious or other reasons you and your spouse want to remain legally married but wish to live separate lives a legal separation decree will protect you from financial obligations that your spouse may enter into without your consent.

If one spouse is financially dependent on the other, a legal separation agreement can also be made to specify the amount of spousal support that the other must pay. It can also be used to disentangle or sort out debts, inheritances and other assets that you no longer want to be considered marital property.

In the case of a legal separation, neither spouse can remarry without first divorcing the spouse they are legally separated from. The legal separation decree can be converted to a divorce decree as is, or can be modified to reflect changes than need to be made once the decision to divorce, rather than remain separated indefinitely, has been reached.

Depending on how long the legal separation decree has been in force, it makes sense to revisit the document to be certain that the agreements you made together when you originally decided to live apart unmarried are acceptable to you once you’ve decided to completely terminate the marriage.

Religious prohibition is not the only reason some couples choose to separate but not divorce right away. Occasionally, a couple who no longer wishes to live as a married couple will agree to stay married for other reasons such as to remain eligible for certain benefits that will not be available should the couple divorce.

One possible scenario under which this could happen is in the case where the couple wants to be sure that a non-working or low paid spouse will be able to collect social security or other benefits based on the higher earning spouses pay. For social security purposes, a marriage must last a minimum of 10 years before a spouse qualifies for benefits bases on their spouse’s pay. However, if after the couple divorces, the lower earner remarries he or she loses the right to collect social security benefits bases on the previous spouse’s income.

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