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How to Draw Up a Separation Agreement

by Laurie Rappeport

For some couples, drawing up a separation agreement simply involves putting down in writing what the couple has already agreed upon between themselves. For others, it can involve a protracted negotiation whereby they make an accounting and division of all joint property, as well as a formal agreement regarding their child's future. Even though the process of writing up a separation agreement can become emotionally draining, attorneys suggest that the couple conduct a legal separation or end their marriage with a separation agreement, rather than going on to a more expensive and draining court battle.

Hire an attorney. No matter how friendly you and your separated-ex may feel towards each other, you both need to protect your own self-interests. An attorney can serve as an unbiased observer to help you negotiate in a manner that will provide each side with as fair a settlement as possible

Find an attorney that you can trust, but don't give the attorney the power to make your decisions for you. You may have special circumstances that the lawyer doesn't know about or you may want to draw a red line at a point that you recognize, but your lawyer doesn't. Always read and evaluate any suggestions or proposals for yourself and direct your attorney to proceed in the manner that you feel best reflects the direction that you want the separation agreement to take.

Include all present and possible future points of contention in the agreement. Spell out spousal support payments, child support payments, child visitation, division of property, division of assets and debts and any other issues that you may envision.

Look at the agreement objectively to ensure that any sticking points constitute real issues for you. Reflect on your motives to make sure that you do not object to any parts of the agreement because you want to extract revenge on your ex. If you feel that the agreement contains a clause that you can't live with, consult with your attorney to ascertain whether, given your state's laws, you will have a chance of succeeding if you take the agreement to court.

Write the separation agreement as thought it constitutes a final divorce agreement, even if you only intend for it to cover a legal separation. You may find it hard, if not impossible, to reverse or change an agreed clause in a separation agreement, even if your intention was that it only stand temporarily. If you find a clause in the separation agreement that you couldn't live with long-term, remove it or stipulate in writing that the clause will not constitute a part of any final divorce agreement.

Have the agreement witnessed by a third party if you decide to draw up an agreement without the assistance of an attorney. The presence of a witness can attest to the legality of the agreement and the consent of both parties to the agreement.

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