A Separation Agreement (sometimes referred to as a property settlement agreement or a divorce agreement) is a document which outlines the terms of a divorce or a legal separation. Typically, a Separation Agreement will cover such topics as:
- Maintenance (alimony)
- Division of marital property and debts
- Health insurance and payment of extraordinary medical expenses
- Child custody
- Child support
- Timesharing / visitation
- Allocation of attorney’s fees and court costs
If a Separation Agreement is not utilized, the marital issues it might otherwise cover will either be settled by default rules or must be resolved through litigation. For example, if there is no Separation Agreement and a parent who is paying child support dies, that parent’s estate must continue to pay the same amount in child support. See KRS 403.213(3). In many cases, this default rule – and others found in the Kentucky Revised Statutes – is not what the parties would have chosen on their own.
If the parties cannot agree, the issues must be litigated. The parties would have to present their claims for property division, maintenance, child support, etc. and the court would have to hold hearings and review evidence concerning these matters and make rulings based on the relevant statutes. A Separation Agreement allows the parties the flexibility to decide such issues on their own, thereby reducing legal fees, time spent in court, and the strain inherent in divorce litigation.
Other reasons to enter into a Separation Agreement include:
- The ability to specifically designate marital and non-marital property
- The potential for mutually beneficial tax planning
- The ability to incorporate the Agreement into the Decree of Dissolution or Legal Separation, so that its terms are as enforceable as those in the Decree
Frequently Asked Questions
- May the terms of the separation agreement be modified?
- Provisions concerning maintenance and property division may be modified, so long as the separation agreement itself does not prevent modification. See KRS 403.250(1).However, provisions concerning child custody, child support, and visitation/timesharing are NOT binding on the court. This is because the court always has the ability to determine issues concerning minors (those under 18) according to the “best interest of the child” standard. See KRS 403.180(2).
- Are the terms of the separation agreement binding? What if changed circumstances make the terms unfair to one of the parties?
- A separation agreement is like any other contract in that the terms are binding on the parties to the agreement. While parties are generally held to their bargains, a court can review the terms in light of the circumstances of the parties and void terms that it finds to be “unconscionable” (e.g., fundamentally unfair).An attorney can draft a Separation Agreement so as to ensure the terms are not unconscionable/unenforceable and that the terms are fair and reasonable to the client. An attorney should ensure that all assets of both parties are considered so there is no misrepresentation and explain the agreement so both parties assent to its terms.
- How can I be sure my former spouse will comply with the terms of the agreement?
- The agreement may be “incorporated” into the decree of dissolution or legal separation and thereby made a legal judgment. As a legal judgment, it is enforceable via remedies such as garnishment, execution, and contempt. See KRS 403.180(4)-(5).For example, if the parties agree in a Separation Agreement that the husband will pay the wife $500 in maintenance per month but the husband does not pay, the wife may petition the court to garnish the husband’s wages because this aspect of the agreement was made into a legal judgment.Even if not incorporated, the agreement’s terms are still binding, though it might take longer to enforce. The non-breaching spouse would have to petition the court and prove that a contract was formed and the relevant terms agreed upon, and that they were not unconscionable.
- Does the Separation Agreement need to be in writing?
- Yes. See KRS 403.180(1).
- Can a Separation Agreement be revoked after it is created?
- Yes. Like any other written contract, a prenup may be revoked if both parties abandon and/or destroy the written document, or jointly execute a written revocation.
Legal Services Offered and Cost
Legal fees: $300 flat fee for drafting agreement and up to one hour of discussion time with an attorney in person, on the phone, or through the internet
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