10 traps to avoid in your Separation Agreement

The Separation Agreement in a divorce is arguably the most important document since it governs the conduct and responsibilities of the parties after their divorce.  It is a contract and is enforceable by the courts.

Things to Avoid in a Separation Agreement

1. Make sure you understand the “Incorporation and Merger” clause of the Separation Agreement.  If the Separation Agreement does not merge into the judgment of divorce, then it survives as in independent contract which makes it harder to modify.  You can merge some provisions and not others in a Separation Agreement.  Your attorney can advise you on which portions to merge and which portions to let survive.
2. Make sure you include an “Emancipation” clause in your Agreement if there are children involved.  You want to specifically lay out when child support ends and under what circumstances so there is no ambiguity and disagreements  between the parties.
3. Make sure to lay out how visitation works on special holidays such as Christmas, Thanksgiving, Mother’s and Father’s Day, child’s birthday, etc.  Most Separation Agreements will have a normal visitation schedule but neglect to mention how, if any, the visitation schedule will differ on special events.
4. Make sure you know the difference between physical and legal custody.  Custody has two parts, physical and legal.
5. Make sure you spell out what expenses of the children fall outside of the normal child support payments, such as, extracurricular activities, camp, medical expenses, etc.
6. Consider if one parent is more well off than another, requiring the wealthy parent to maintain life insurance where the beneficiary is either yourself or held in trust for the children.  Also require proof that the policy is maintained every year.
7. If any retirement accounts are divided during the divorce, it must be through the use of a Qualified Domestic Relations Order (QDRO) or else there will be interest and penalty charges levied by the IRS and Department of Revenue.
8. If you need health insurance coverage by your spouse, make sure to spell out who is responsible for that coverage, what type of coverage and how long the coverage will last.
9. Make sure to spell out who gets the benefit of claiming the child(ren) as dependents on taxes
10. Last but not least, make sure to have an experienced divorce lawyer, if not draft, at least look over the Separation Agreement before you sign it.  Some parts of a Separation Agreement might be impossible to change once it is approved so you don’t want to count on an action for Modification if you notice later on, that a particular provision was not to your liking or advantage.

Of course there are more than 10 things you need to consider before signing a Separation Agreement.  Make sure you know what your rights are being signing any legal document.  You want to do it right the first time because it will cost less time, money and heartache in the future.

For a free consultation with a Divorce Attorney call (617) 652-5748 and ask for Gabriel Cheong.

Related: What Happens at a Final Divorce Hearing