1. Chapter 12:
Separation Agreements
12
Family Law for the Paralegal
2nd Edition
Wilson
Class Name
Instructor Name
Date, Semester

2. LEARNING OBJECTIVES
After this lecture, you should be able to:
12.1 Explain the nature and purpose of a separation
12
agreement.
Identify the characteristics of an effective
12.2 separation agreement.
Describe how a separation agreement is
12.3 developed.
Class Name
Instructor Name
Date, Semester
Cont.

3. LEARNING OBJECTIVES
After this lecture, you should be able to:
12.4 Describe the role of a paralegal in preparing a
12
separation agreement.
List the basic components of a separation
12.5 agreement.
Explain the difference between a merged and a
12.6 surviving agreement.
Class Name
Instructor Name
Date, Semester
Cont.

4. LEARNING OBJECTIVES
After this lecture, you should be able to:
12.7
Describe the role the courts play in 12
approving, modifying, and enforcing separation
agreements.
Class Name
Instructor Name
Date, Semester

5. Learning Objective
After this lecture, you should be able to:
12.1
Explain the nature and purpose
of a separation agreement.

6. What is the nature and purpose
12.1 of a separation agreement?
• A separation agreement is an agreement made between
spouses in anticipation of divorce or legal separation
concerning the terms of the divorce or separation and
any continuing obligations of the parties to each other.
• It is a contract regarding the parties’ individual rights and
responsibilities primarily with respect to
finances, property, and minor children, if any.
• It may be called, among other options, a separation
agreement, a marital agreement, a marital dissolution
agreement, or a permanent stipulation of the parties. In
several states, it consists of two parts: a parenting plan
that covers child related issues and a property settlement
agreement that covers all other issues.
6

7. Learning Objective
After this lecture, you should be able to:
12.2
Identify the characteristics of an
effective separation agreement.

8. What are the characteristics of an
12.2 effective separation agreement?
• The agreement is comprehensive.
• The terms of the agreement are clearly defined and
reflect the parties’ intentions.
• The terms of the agreement are stated fully so that
the parties know what is expected of each of them
• Although the parties are free to settle for less than
they might be entitled to under the law, the
agreement should still be fair and freely entered.
8

9. Learning Objective
After this lecture, you should be able to:
12.3
Describe how a separation
agreement is developed.

10. How is a separation agreement
12.3 developed?
• In a majority of cases, the parties to a divorce or
legal separation reach an agreement with or without
the assistance of counsel and/or alternative dispute
resolution measures such as mediation and neutral
case evaluation.
• The client must have input and review all proposals
communicated to the other party and have an
opportunity to consider all counterproposals. The
client ultimately controls the agreement in the sense
that he or she has the final say with respect to
whether or not to accept and agree to certain terms
or proceed to trial.
10

11. How is a separation agreement
12.3 developed? (continued)
• The three most common ways in which agreements are
developed are the following:
• The parties reach an agreement on their own and
proceed pro se or give the agreement to their respective
attorneys for review and submission to the court.
• The parties each retain counsel and review with them
their respective goals and bottom line terms. Financial
statements are exchanged, information is gathered
through discovery and or informally, and an agreement is
negotiated usually through counsel but sometimes with
four-way meetings. One attorney will usually prepare an
initial draft for review and successive drafts will be
exchanged until agreement is reached.
11

12. How is a separation agreement
12.3 developed? (continued)
• In more complex or hotly contested cases, drafts will
not be prepared until discovery is complete and the
parties have a sense of the nature and extent of the
marital estate (including liabilities) and the issues
regarding minor children. The attorneys may draft
initial proposals outlining their respective client’s
positions on the various issues. The parties may
participate in mediation and neutral case
evaluation. Areas of agreement are identified and a
partial agreement may be reached. The issues that
remain unresolved will be presented to the court for
resolution.
12

13. Learning Objective
After this lecture, you should be able to:
Describe the role of a paralegal
12.4 in preparing a separation
agreement.

14. What is the role of the paralegal in
12.4 preparing a separation agreement?
• The paralegal usually plays an active role in gathering needed
information through meetings with the client and formal and
informal discovery. See Paralegal Application 12.1 Information
Gathering for Separation Agreements on pages 411-412 of the
text.
• The paralegal may participate in meetings with the attorney and
the client in which the terms of the agreement are discussed and
an outline is prepared.
• If warranted, the paralegal researches the law governing
separation agreements.
• The paralegal researches formats and any jurisdictional
requirements. See Exhibit 12.1 Checklist of Basic Topics Covered in
Separation Agreements on pages 414-417 of the text.
• The paralegal drafts an agreement based on the supervisor’s
directions. See Exhibit 12.2 Sample Separation Agreement on
pages 418-440 of the text.
14

15. Learning Objective
After this lecture, you should be able to:
12.5
List the basic components of a
separation agreement.

16. What are the most common formats
12.5 for separation agreements?
• The document is usually drafted using one of the
following three formats:
– A two part format consisting of a main body (containing a
recital of pertinent facts and a series of general boilerplate
provisions pertaining to disclosure, severability, etc) and a
series of exhibits that are incorporated in the agreement by
reference (each addressing a separate topic such as
alimony, custody, or division of property)
– An integrated document with numbered articles on specific
topics following an introductory series of “recitals” of pertinent
facts.
– A format recommended or required in the jurisdiction often
provided on court/state-sponsored websites.
16

17. 12.5 What are the basic components of a separation
agreement in a two-part format?
• Identification material with respect to the parties
• A series of recitals including a statement of the facts such as date and place of the
marriage, children’s names and ages, living status, etc.
• General provisions including, for example, mutual releases, waiver of estate
claims, acknowledgments (full disclosure, representation by independent
counsel, voluntary execution, etc.), binding effect, modification, attorney’s fees, governing
law, severability, etc.
• Exhibits:
– Alimony
– Child Custody
– Child support
– Property division:
• personal and real
• Liabilities
• Insurance
• Taxes (and bankruptcy, if applicable)
17

18. Learning Objective
After this lecture, you should be able to:
Explain the difference between
12.6 a merged and a surviving
agreement.

19. What is the difference between a merged
12.6 and a surviving separation agreement?
• A separation agreement is a contract between the
parties that is effective upon signing unless otherwise
provided (for example, the terms may provide that the
agreement will be effective upon the date of the divorce
judgment).
• When the agreement is presented to the court for review
generally at the time of the final hearing, the parties
customarily request that it either be incorporated by
reference and merged in the court’s decree OR that it be
incorporated by reference in the decree and not merge
but rather continue to retain its independent legal
significance as a contract separate and apart from the
divorce decree.
19

20. 12.6 What is the difference between a merged and a
surviving separation agreement? (continued)
• When an agreement is incorporated and merged in the
divorce decree, the decree includes the terms of the
agreement making them part of an order of the court and
the agreement itself no longer exists as a separate
contract. Its terms are then enforceable only by the
family court that entered the decree.
• When an agreement is incorporated in the divorce
decree and also survives as an independent
contract, the terms of the agreement that are
incorporated and made part of the decree are
enforceable by the family court. However, because the
agreement also continues to exist as a contract with
independent legal significance separate from the
decree, it is also enforceable in a court of equity.
20

21. Learning Objective
After this lecture, you should be able to:
Describe the role the courts play
12.7
in approving, modifying, and
enforcing separation
agreements.

22. What is the court’s role with respect to
12.7 separation agreements?
• The courts play a variety of roles with respect to
separation agreements. The most common include
the following:
– Reviewing the agreement at the time of the final
hearing or trial for possible incorporation in the
decree
– Modifying the agreement
– Enforcing the agreement
– Vacating/setting aside the agreement
22

23. 12.7 What is the role of the court with respect to the
agreement at the time of trial or final hearing?
• Even in an uncontested case in which the parties have
executed a mutually agreed-upon separation agreement, the
court usually holds a brief hearing with both parties present in
which it reviews the document and asks questions such as the
following:
• Have the parties read the agreement, do they understand its
terms, have they reviewed it with their own attorney, and have
they executed it freely and voluntarily?
• What arrangements have been made for the continuation of
health insurance?
• Do they want the agreement to merge or survive as an
independent contract?
• What are the conditions for payment of child support? Will it be
paid by wage assignment?
• Have both parties waived their respective rights to alimony?
23

24. What is the role of the court with respect to the
12.7 agreement at the time of trial or final hearing?
(continued)
• When a complete or partial separation agreement is
presented for approval, the court generally exercises one
of three options:
• It may incorporate and merge the terms of the
agreement into the decree
• It may incorporate the terms of the agreement in its
decree including the provision that it will survive as an
independent contract (making it a “surviving
agreement”).
• It may reject the agreement in whole or part because it
violates the law or a strong public policy (such as when
party waives all rights to child support)
24

25. What is the family court’s role with respect to
12.7 modification of an agreement?
• If the agreement is incorporated and merged in the decree, the
family court retains the authority to modify it based on a
substantial change in circumstances.
• If the agreement is incorporated but survives as an independent
contract, the general rule is that the family court can only modify it
in a limited number of circumstances:
• If the agreement provides for modification under certain
circumstances such as remarriage or cohabitation of one of the
parties or a substantial increase or decrease in a party’s
income, the court can modify the agreement.
• The court retains jurisdiction over child-related matters and
therefore can modify provisions of the agreement based on a
substantial change in circumstances that affects the children’s
welfare.
• If there is a more than substantial change in circumstances such
that one of the parties is about to become a public charge, many
family courts will order an appropriate modification.
25

26. What role does the court play in enforcing
12.7 or vacating the agreement?
• If the agreement is incorporated and merged in the
divorce decree, enforcement is pursued in the family
court that issued the decree because the “breach” is a
violation of an order of that court. The party seeking to
enforce the agreement customarily will file a contempt
action or a motion to enforce the judgment.
• If a party seeks to enforce a surviving agreement, he or
she can (and usually does) seek enforcement in the
family court that issued the decree OR because the
agreement survives as a contract with independent legal
significance, he or she can pursue contract remedies in a
court of equity. For example, the aggrieved party may
sue for breach of contract seeking damages or specific
enforcement of the agreement.
26

27. 12.7 What if a party seeks and obtains a modification of a
surviving agreement in a family court?
• If a party is successful in seeking modification of a
surviving agreement by the family court, the other
party can seek to enforce the agreement by suing in
contract for damages. For example, if the
agreement provided for alimony of $200 and the
family court modifies the agreement and orders
payment of $400 a month alimony, the aggrieved
party can seek to recover in contract the $200 per
month difference.
27

28. Can a separation agreement be
12.7 vacated?
• Decrees issued by trial courts may be appealed to higher
courts within the state and may be affirmed or set aside
based on an error of law or abuse of discretion.
• After the divorce is “final,” a party also may seek (in a
new trial or other action) to have the court vacate or set
aside the judgment incorporating the agreement. For
example, a party may discover five months after the
divorce that despite his or her best efforts to obtain full
disclosure while negotiating an agreement, the other
party wrongfully concealed a substantial asset. Had the
asset been known at the time of the divorce, the terms of
the agreement would have been different.
28

29. Chapter Summary
12.1 Explain the nature and purpose of a separation
12
agreement.
Identify the characteristics of an effective
12.2 separation agreement.
Describe how a separation agreement is
12.3 developed.
Class Name
Instructor Name
Date, Semester
Cont.

30. Chapter Summary
12.4 Describe the role of a paralegal in preparing a
12
separation agreement.
List the basic components of a separation
12.5 agreement.
Explain the difference between a merged and a
12.6 surviving agreement.
Class Name
Instructor Name
Date, Semester
Cont.

31. Chapter Summary
12.7
Describe the role the courts play in 12
approving, modifying, and enforcing separation
agreements.
Class Name
Instructor Name
Date, Semester