Separation AgreementPRINT THIS
Marital Settlement Agreements are agreements incident to a dissolution of marriage. A Separation Agreement is an agreement between parties who remain married but are no longer living together who want to define their legal obligations and responsibilities to each other. These agreements provide the roadmap for the parties’ financial future and their relationship and responsibilities for their children. They must be thoroughly and carefully prepared by a divorce attorney with experience in negotiating and drafting such agreements.
Marital Settlement Agreements as well as Separation Agreements may be discussed, negotiated and completed before or after formal actions are filed in court. After a case is filed, a Marital Settlement Agreement is often reached well before a contested trial but after some uncertainties or conflicts are resolved in preliminary court proceedings. Some Marital Settlement Agreements and legal Separation Agreements are settled literally on the courthouse steps just before the trial is to begin at times even during a trial. Regardless of how the process begins, a Marital Settlement Agreement, or Separation Agreement must be carefully drafted and understood by the parties. Both Marital Settlement Agreements and formal Separation Agreements deal with important topics including custody, parenting time, visitation, support, education and costs and health care for the children; maintenance (alimony) for a party, whether it should be included at all, and if so, how much, for how long, and whether it is to be modifiable; a division of property, including real estate, personal property, bank accounts, investment accounts, securities, investments in private equity, valuable collections, patents, copyrights, vehicles, aircraft, watercraft, and all other things of value owned by the parties.
Marital Settlement Agreements, even though agreed to by the parties, nevertheless require a review and approval by the Domestic Relations Court as “not unconscionable” to be valid and enforceable. In layman’s terms, that means that the agreement is not grossly unfair to one of the parties. The court must also approve all child custody and support provisions contained in a Marital Settlement Agreement before they are binding and enforceable. If the Marital Settlement Agreement passes court review, it will be incorporated in the Judgment Of Dissolution Of Marriage that dissolves the parties’ marriage. If one of the parties violates a provision in the agreement, the other party may file a petition to enforce the judgment.
Separation Agreements, like Marital Settlement Agreements, may be presented to a court for approval and incorporated into a Judgment Of Legal Separation, which creates a binding court-decreed legal separation. The provisions of a Judgment Of Legal Separation, which may be similar to those in a Marital Settlement Agreement, are as enforceable as the provisions of a Judgment Of Dissolution Of Marriage; the only difference is that the parties technically remain married. However, unlike Marital Settlement Agreements, Separation Agreements may be private documents between the parties without court approval. If one of the parties violates the agreement, the other party must go to court and sue for specific performance or breach of contract.
Schiller DuCanto & Fleck’s Chicago family law attorneys spend a major portion of their time negotiating, carefully drafting and analyzing these agreements. We creatively deal with the complex issues that arise as we tailor make settlements for our clients.