All About Pennsylvania Separation Agreements: What You Need to Know Legally
What Is a Separation Agreement in Pennsylvania?
Before delving into the intricacies of a Pennsylvania separation agreement, it is important to understand the context in which such an agreement is relevant. Separation agreements are typically referenced in the context of Pennsylvania family law. For those who are unfamiliar with the concept of family law, it refers to the body of law governing familial relationships and their dissolution. Its primary focus is the division of assets and liabilities between couples going through the dissolution of their marriage. An important caveat, however, is that for a separation agreement, you must actually be separated from your spouse. That is different than being merely estranged. Separation or being separated means that you and your spouse are two separate individuals – i.e., you do not live together as a married couple. One of you has moved out of the marital residence. You are living in two separate residences with no intent to move back in to the residence together.
So, if you and your spouse are living separate and apart, it is essential to know that you have some decisions to be made . You can either physically separate or file for a divorce and just go through the traditional litigation route, or you can come to an amicable resolution regarding the issues pertinent to your situation. So what are some of those issues that must be addressed? Well, we must talk about equitable distribution. Equitable distribution addresses issues of the equitable distribution of assets: Who pays what bills? Who is going to stay on the mortgage? Who is going to pay alimony pendente lite (APL)? Who is moving in and getting the kids? Ultimately, generally, if you and your spouse own a home together, you are usually going to have to sell that home. There will be a sale and there will be also a distribution once any mortgages are paid off and any liens on the house are paid off. There are other issues that could arise, and specifically, whether one of you will have to pay spousal support or APL to the other spouse. I could go on and on about this topic, but the important point is that you have some choices that can help you to minimize the costs and the pain associated with what is otherwise a very difficult time.
Essential Elements of a Pennyslvania Separation Agreement
A separation agreement is a legally binding contract that forms part of the divorce process. In this document, details of the divorce settlement are outlined and become enforceable once both parties sign the agreement.
The Terms of a Separation Agreement
Every separation agreement should cover:
In the separation agreement, you provide your personal information, such as names, addresses, date of marriage, and date of separation. Your spouse will list his or her information. The separation agreement can also include information about any dependent children. For instance, you may need to state their ages, where they live, where they go to school, and any other information that might be relevant.
You need to state how to divide your assets. You may need to provide details about your home, vehicles, bank accounts, debt, etc. Discussing this at length will help you make empty promises you might later resent or have to break in future negotiations. If you cannot decide on the division of assets, you need to consult with your family law attorney. He or she can say if certain assets should be divided or remain in the hands of one person or the other.
You need to include a proposal for making spousal support and spousal maintenance payments. The amount you have in mind will depend on your individual circumstances. If you need help determining how much spousal support and maintenance you should pay or receive, ask your family law solicitor.
In the separation agreement, you also need to cover who pays child support benefits. Additionally, there should be information about medical and dental insurance, child tax credits, and amounts of alimony. Please remember that courts will prioritize the welfare of children in a marriage, even over their parents.
It is also essential to discuss alimony agreements thoroughly. The amount and duration of alimony will depend on various circumstances, including the length of a marriage, kids involved, monetary situations of each party, marital misconduct, and age.
Some other aspects that should be tackled in a separation agreement include:
Legally Required Junctures and Enforceability
An enforceable separation agreement in Pennsylvania must satisfy the prevailing requirements for contracts, including that it be voluntarily entered into by both parties and not one-sided or unduly coerced. There are a number of situations when a court will not enforce a separation agreement entered into by spouses, including when:
In Pennsylvania, entering separation agreements is a procedure that is sometimes used to limit the equitable distribution between spouses as they separate their lives before a divorce occurs. The divorce courts have concluded that they do have the ability to enforce such agreements, and will uniformly do so provided the agreement isn’t against public policy or was entered into under duress or fraud. To be enforceable, the agreement must also be within the bounds of the equitable distribution rules.
The legal requirements for an enforceable separation agreement include a writing signed by both parties and notarized. It doesn’t need to be witnessed, but it is prudent to do so. The signatures during this notarization suggest that each party had voluntarily entered into the contract.
While a separation agreement does not require a filing to be in full effect, filing for divorce with the court under Pennsylvania law allows the judge to grant enforcement of the provisions within the separation agreement if one partner is violating these terms. It also has the effect of pausing the statute of limitations on any disputes that may arise until the filing of the divorce.
Comparing Legal Separation vs. Divorce in Pennsylvania
In Pennsylvania, there is no such thing as "legal separation". Unlike some states there is no legal process by which you and your spouse can get legally separated. As the Pennsylvania Supreme Court has noted, "The concept of judicially mandated separation does not exist in Pennsylvania." Rosenberg v. Rosenberg, 159 A.2d 694, 696 (Pa. Super. 1960). While there are individuals who mistakenly refer to the process of divorce as "separation", it is important to understand that separation is not the same as a divorce. In fact, under Pennsylvania divorce law, a decree must be entered whether the parties are ready or not to move on with their lives. While you may at the time of filing for divorce believe that you and your spouse will get back together, within a few months that may not be true and, thus, both legally and practically speaking a divorce proceeding grants you remedies and rights that mere "separation" does not. In Pennsylvania, once you have been living separate and apart from your spouse for one year, you may file for divorce. A divorce proceeding is a legal action that ends a marriage. Once all issues are agreed upon or determined by the court, the Divorce Decree is entered. That Document then serves as proof that in the eyes of the law, the parties’ marriage has been dissolved and when presented to government agencies or courts, that legally married status will be recognized.
Getting a Fair Deal When Negotiating a Separation Agreement
When it comes to drafting a separation agreement, the negotiation process is critical. A separation agreement is essentially a contract entered into by a married couple, so if the agreement is not drafted properly, it could have a major impact on your divorce outcome. When negotiating the terms of your separation agreement, it’s important to be open and honest with your spouse about the outcome you hope to achieve. While this may be difficult, try to keep an open mind and listen to what your spouse has to say. By doing so, you will open the door to productive discussions that will help you make final decision on the issues you need to address in your written agreement. The more you listen to each other, the more likely you are to come to an amenable outcome for everyone involved. Once you’ve agreed on the basic terms of your agreement, it’s time to get it in writing. Before you sign any written agreements, make sure to read them carefully to ensure that all of the terms you discussed are included in the agreement. It’s also wise to consult with a Pennsylvania family law attorney before you sign any documents, for the sake of protecting your rights and ensuring the agreement you arrive at is fair for everyone involved.
All About a Lawyer’s Role When Creating a Separation Agreement
Although it is not a requirement to have legal counsel draft a separation agreement, it is highly recommended. An experienced lawyer knows all of the pitfalls that a lay person may not see. For example, how many clients request a 50/50 division of assets and debts? This is a reasonable division when there are a large number of assets. However, if there are no assets (except for debt), a 50/50 division of debt could be very harmful to one of the spouses.
The following are some examples of legal issues that may need to be addressed in a separation agreement: A lawyer will thoroughly review the client’s financial situation and also ask questions in order to discover information that the client may not have been aware of. Often times, clients present a simple list of assets and debts, but do not realize that certain assets are "qualified" or that certain debts are "secured . " An attorney will be able to categorize and determine whether to divide the assets in kind or as the net value.
An experienced attorney will also be able to ascertain the credit worthiness of each spouse in relation to a particular asset. For example, if married persons are living in a house and both own the house, it is often necessary to retain one individual’s name on the deed after separation to be able to refinance the mortgage. However, if the spouse who is remaining in the house has poor credit, it may not be possible to refinance the mortgage. In these circumstances, the wife may decide to transfer the house to the husband while another asset of the same value compensates the wife for her interest in the home.
Amendments and Modifications of a Separation Agreement
In Pennsylvania, the parties to a marital settlement agreement or separation agreement can agree to revise or modify the terms of the agreement. If the parties attempt to enter into an oral or informal modification, it may be difficult to prove later in court what the modifications were or whether the parties intended for the modification to be binding upon all.
The better practice is for the parties to execute a new written amendment or modification to the existing separation agreement. That way, there is clear proof of what the parties agreed upon. However, even if the parties believe that they have entered into an informal modification, it will nonetheless be treated as a valid enforceable contract if the elements of a contract are present and the situation is supported by the facts and circumstances.
Separation agreements are subject to the Statute of Frauds, which provide that a written document is necessary:
- (1) [i]f the contract is not to be performed within a year from the making thereof;
- (2) [i]f the value of the property to be transferred is greater than $500;
- (3) [i]f the sale of real property is involved;
- (4) [i]f the sum payable is more than $500;
- (5) [i]f an agreement to answer for the debt of another is involved.
A separation agreement will fall within the Statute of Frauds if it:
(i) involves the transfer of property or funds that exceed $500.00; or
(ii) extends for a period greater than one year, etc.
Written amendments to separation agreements and marital settlement agreements must comply with the Statute of Frauds as well. As such, if the separation agreement is in writing and it meets the elements of a contract, then that agreement is the binding and enforceable agreement between the parties.
Most Common Questions Surrounding Separation Agreements in Pennsylvania
What is the purpose of a Pennsylvania Separation Agreement?
In Pennsylvania, Separation Agreements are used primarily because the couple is married and has decided they want to separate; however, they do not want to divorce right now for whatever reason.
When do you have to separate before you get divorced in Pennsylvania?
You can separate at any time. In Pennsylvania, there is no minimum time requirement between the date of separation and the date of divorce.
My husband cheated on me, will I have to continue to support him in our Separation Agreement?
In order to be awarded spousal support, alimony pendente lite, and/or alimony you have to show a financial need. If you can show that your spouse has a need for spousal support, then your spouse will have to support you during your separation.
Do we need to be separated before we sign the Separation Agreement?
No, you can negotiate the terms of your separation and even move out, but you do not have to be physically separated or new residences to enter into a Separation Agreement.
How can I enforce the terms of a Separation Agreement?
If you are being deprived of what is contained in the terms of your Separation Agreement, you can go to court and ask for enforcement of the terms. The court can order the person to comply with the terms of the Separation Agreement and impose penalties if he/she does not comply.
Conclusion: Making an Informed Decision
In conclusion, it is important as a party to a Pennsylvania Separation Agreement to fully understand the terms set forth therein as they pertain to your specific situation. Additionally, you should understand how to enforce your Separation Agreement in the event that your former spouse does not abide by the contractual provisions . Finally, you should understand how your Separation Agreement will affect any anticipated custody, support and/or divorce litigation. This is why it is essential to have competent legal counsel by your side to guide you through each of these processes.