SEPARATION

A separation agreement (sometimes called a Pendente Lite Order) is a formal agreement between you and your spouse. It provides for support and other financial conditions until the divorce is final. Be sure to get this in the form of a court order. Without a court order your agreement is not binding. This should be easy if you and your spouse can negotiate and agree on the terms. If you and your spouse agree you probably won't have to appear in court, as your attorney will take the signed agreement to the judge who will sign it thereby making it a court order. Your separation agreement is something you and your spouse should negotiate. As with all other aspects of a divorce the more decisions made out of court the better off you are. Unfortunately, getting your divorce may take longer than you think (or would like). That is why it is so important to have a concise separation agreement.

What the agreement should contain:

  • How much child support is to be paid (if applicable). How often it is to be paid and the way it will be paid. If possible you may want to have it as a payroll deduction through your local child support agency. Remember that there is not a stigma attached to that. If anything you should feel proud that you are supporting your children.
  • A set visitation schedule. Be as specific as possible when it comes to this area of your agreement. Make sure the times set aside are convenient for the children as well as the adults. Often adults forget that children have lives of their own when setting up the visitation schedule.
  • How much alimony (if any) is to be paid. Remember that alimony is taxable to the recipient and deductible for the payer. This is only true if alimony is in the form of a Court Order, or a written agreement signed by both parties. Additionally, if there are alimony payments you can not file a joint return. Discuss this with an accountant. Depending upon the situation, it may be better to not allocate the funds as alimony.
  • Who is responsible for the joint bills.
  • Who will remain in the marital residence (formally known as your home), who will pay for the upkeep of it, if one party is paying all the bills will the expenses for upkeep be allocated at the time of the divorce, or if the house is sold. Click here for more information on selling you home.
  • If you are due any type of joint refund such as tax refund, determine how they will be split. If you can't reach an agreement often times those funds end up in an escrow account until the issue is settled.
  • If you own a home, who will take the tax deduction for the mortgage interest and real estate taxes if you file separately. Usually it is the person who is paying the mortgage; however, if one person needs the deduction and the other doesn't need it, this could be a good negotiating point.
  • If you have children, who will take the tax deduction for the children if you file separately. Usually the spouse paying the support would be allowed to claim one or more of the children Depending on the amount of support being paid. However once again if one person can use the deduction and the other doesn't need it, this could be a good negotiating point.