Understanding Separation Agreements in Pennsylvania: Key Information

What is a Separation Agreement

A separation agreement is a contract executed between spouses at the time of their separation. As with most contracts, there are several essential components of a separation agreement that it must contain for it to be "valid." The agreement should identify the parties to the agreement, specify whether there are any children of the marriage, designate who is entitled to the use of the marital residence during the separation, and allocate responsibility for certain marital debts. Additional issues related to support and distribution can be included in the agreement.
The agreement will require a notary or a witness. Additionally, there may be administrative requirements that must be completed after the agreement is signed, such as filing the agreement with the Clerk of Courts once in order to fully effectuate the separation .
As described in Title 23 of Pennsylvania’s consolidated statutes, a true and correct copy of the separation agreement must be filed with the Clerk of Courts within 90 days of the date of separation. If such a filing does not occur, the separation agreement will lose its binding effect under the statute unless or until one of the parties files for Divorce and the Divorce action is served on the other party.
One of the attractive aspects of the separation agreement is that it gives the parties the ability to work out a number of issues on their own terms, and designate how they would like certain issues handled going forward.

Legal Requirements of a Separation Agreement in Pennsylvania

Considered a legally binding contract, separation agreements in Pennsylvania require certain elements for the terms to be enforceable. These include:
In general, these agreements should contain all the material issues you want to resolve at the time that you are entering them into. A Pennsylvania separation agreement will not be considered valid if the parties try to include terms to address issues that the court has no jurisdiction over. For example, you cannot have a court grant a divorce if you have not yet lived apart for 90 days. This is a jurisdictional matter that cannot be waved by the parties.
Likewise, the agreement will not be enforceable if it does not accurately reflect the parties’ intentions concerning the issue. It is for this reason that it is always best to have an experienced family attorney review the document before it is signed. A judge will review the agreement before finalizing your divorce, so naturally the agreement should be carefully prepared beforehand to avoid having it disapproved on the basis of either lack of jurisdiction or failure to accurately express the intentions of the parties.

Elements of a Separation Agreement

A separation agreement in Pennsylvania is a unique contract that often has many facets. It is important to identify the essential components that need to be included in order to avoid issues later on. For your own protection, it is critical that you understand the implications of signing a separation agreement. Your Pennsylvania divorce attorney can ensure that you know what you are getting into and have a strong understanding of what you are giving up by signing. A divorce settlement is a particular form of separation agreement that is legally recognized by the court. It establishes the rights and obligations of each spouse. The following components are essential to the majority of separation agreements:
• Division of assets. A separation agreement involves a full accounting of all assets that are owned by the couple. Assets must be divided in accordance with the equitable distribution principles that apply to divorces in the Commonwealth of Pennsylvania.
• Child custody. When a couple has children together, it is essential that their separation agreement includes details about all custody arrangements. Parenting plans should spell out the times that children will spend with each parent and how parenting time may evolve over the years.
• Child support. A separation agreement should include provisions for all financial support obligations for children, including the amount that is owed by each parent and how payments are to be issued. Payments may be through income withholding or by mail. When parents agree to share child support payments, a separation agreement should explain how the total amount of support owed will be divided.
• Spousal support. There are thousands of dollars of difference between support calculations in divorce cases and those in separation agreements. An experienced Bucks County divorce attorney may be able to negotiate significant credit against support owed on a separation agreement if your spouse has already lived in a new relationship for a long enough period of time.

Advantages of Having a Separation Agreement

One of the advantages of drafting a separation agreement is that it begins to accomplish the same outcomes that a divorce accomplishes but, even better, can accomplish those results at an earlier point in time than a divorce does. Assuming both parties are in agreement on the terms of the settlement, a separation agreement is generally drafted within a couple of months. It then allows the parties to begin living under that agreement both in terms of rules and obligations and the parties usually experience significant relief (financially and emotionally) by having a contract that they can rely on from the other.
It is important to understand that a separation agreement is a contract and will be enforced as such. If one party does not comply with the terms of the contract, the other party has the ability to sue the other party in court for breach of contract and to request the court to enforce the terms of the contract. The outcome is similar to what would happen in a divorce. However, a divorce is very expensive and it is commonly known that it is often the parents that end up agreeing to substantial expenses that fall incidentally to the children, such as travel expenses for out of state visitation. A separation agreement gives the parents who are able to agree on the terms of their separation to minimize the occurrence of these post-separation "collateral" expenses. The court will ultimately make an unappealable decision if the parties were to go through a divorce. The parties themselves still have some control over the outcome of the terms of the agreement. In addition, to the extent that one parent tries to take advantage of the absence of a court order and is out of compliance with the terms of an agreement, it is incumbent upon the party who signed it to file suit (which costs significant money) in order to compel enforcement. Therefore, unless the parties have equal bargaining power (and often they don’t), the court outcome is eventually unavoidable.
Both a divorce and a separation agreement accomplish the same things. While there are advantages and disadvantages to each depending on the facts of a case, the best approach to determine the best possible outcome is to speak with a competent lawyer with a thorough understanding of the law and how it applies to your case.

Common Issues with Separation Agreement Drafting

When drafting a separation agreement, one of the main challenges is addressing marital property. In Pennsylvania, marital property refers to any asset purchased or acquired during the marriage less a few narrow exceptions, such as inheritances or gifts from a third party. When couples sit down to negotiate, determining which property is considered marital and what can remain separate can be confusing. To avoid disputes later on, it is imperative that couples have accurate records of all their property, including personal property. The more specific the agreement is regarding the asset division, the less likely there will be disputes later. Another common issue for couples is agreeing on the exact terms of spousal support and alimony. Support and alimony are paid by the higher earning spouse to the lower earning spouse during the divorce or after the fact without fault being considered. Support payments are designed to help the receiving spouse maintain the same lifestyle they enjoyed during the marriage, while alimony is designed to help the lower earner transition out of the marriage . In the agreement, couples should specify the payment amount, how long the payments will last, and if payments will automatically end upon remarriage of the receiving spouse. It is also a good idea for couples to revisit the terms of alimony after a certain period of time as their financial situations can change significantly. Additionally, couples may have difficulty determining what qualifies as child support and how much each parent should pay. Generally, child support is automatically deducted and sent to the receiving parent through Pennsylvania’s Domestic Relations Office. The amount of child support is based on Pennsylvania’s Child Support Guidelines; however, parents can agree to different amounts. Terms of the child support agreement typically work in tandem with the visitation schedule. Couples should consider the financial and emotional impact of child support and make sure the terms are reasonable for both parties.

How to Amend a Separation Agreement

As circumstances in your life evolve, the provisions of your Separation Agreement may no longer serve your needs or desires. The Separation Agreement that you entered into with your spouse is a contract, and thus is subject to modification just like any other contract. If, for example, you no longer desire to pay alimony, if you want to reduce the amount of child support you are currently paying, or if some other provision is proving to be problematic, you have legal recourse.
In order to make modifications to your Separation Agreement, it must be in writing and: (i) signed by both spouses; or (ii) approved by the Court. If both spouses are not willing to modify the Agreement, you must obtain an Order from the Court. A court may enter an order modifying parts, or all, of your existing agreement if: (1) there has been a substantial change in circumstances, (2) the modification is necessary to achieve justice between the parties, and (3) the modification does not adversely affect the interests of children. However, application of this standard is very fact specific. More specifically, courts look at the presence of changed circumstances, the intent of the mutual separation agreement, and the needs of the parties.
A Separation Agreement can be amended by: (i) a signed writing by both parties (as discussed above), or (ii) by obtaining a court order. If a court order is necessary, the principles that guide a judge in deciding whether to approve the modification or not are as follows:
Modification does not require a showing of change in circumstances if the agreement gives discretion to a party to choose between two options and the party chooses to modify the agreement. The mere passage of time does not relieve that party from their obligations under the agreement. Nor does it create an automatic right to modify.

Role of Lawyers in Separation Agreements

The role of legal counsel in these situations cannot be overstated – and must be in your mind when thinking about separation agreements. While it may seem to make sense to go to a general practitioner for representation, you will likely be much better served by going to someone who focuses their practice on divorce law and who has significant experience with the issues that will likely arise in a separation agreement.
Here is the real truth – if your lawyer does not "do" a lot of these cases – they don’t understand them. They will not be able to provide the personalized guidance that you need because they won’t even know what to ask much of the time. For someone with this blind spot, it is perfectly reasonable to go to a general practitioner for advice – they can draft boilerplate language, and anyone can do that. The problem is that they very likely don’t know the current case law, and do not understand the nuances of what that case law means. They cannot help you omit unnecessarily onerous language in your agreement, either, nor tell you with any level of certainty whether the provision you received is actually standard or whether it is somehow skewed. They cannot help you with your financial issues, they can’t help you with housing issues, and they are not well-versed in seeing the whole picture at once to help you decide what is best.
On the other hand, if the professional you choose is someone who only does family law, especially with a focus on separation agreements, they should be able to help you with all of the above-listed issues, and more. They will know the case law off the top of their head, and they will understand all of how the law and the case law interact. They will also have a firm understanding of the directions in which you can negotiate. They will have the foresight to point out issues you might not have thought of, and they will almost certainly have some familiarity with your situation and how it will likely play out in the future based on their experiences.

Frequently Asked Questions Regarding Separation Agreements

1. Do I need a lawyer to draft an agreement in Pennsylvania?

No, but using an attorney is always recommended, especially when you are the higher-earning spouse as a person with more assets and a greater knowledge of the law has more power to take advantage of his/her spouse who may not have those same advantages.

2. How long does it take for a separation agreement to get done?

Rarely does a separation agreement happen quickly. This is because you have to be in a relationship that has unravelled, and then you both have to sit down and talk it out rather than storming away. However, once you reach an agreement, the separation agreement itself can take no more than a couple of weeks to draw up depending on how the two of you communicate.

3. Do I get child support if we have a separation agreement in Pennsylvania?

Only if it is in your agreement. There are no legal requirements a spouse must meet to provide child support; however , child support payments are considered a dependency payment in Pennsylvania. Therefore, if child support is a priority for you, then you need a couple of objectives: First, it needs to be in your separation agreement, and second, you need to file a petition with the court for child support.

4. Can I modify the separation agreement in Pennsylvania?

Yes, both parties can agree to modifications at a later date. Some reasons for modifying the agreement include: a job relocation that drastically alters child support payments and a change of custody from shared to one parent.

5. How much does it cost to file a separation agreement in Pennsylvania?

Typically, there is a very small filing fee to submit the agreement. Therefore, when you consider that post-complaint proceedings can run $10,000 to $15,000 or longer, a separation agreement is a sound idea in Pennsylvania.

6. Does a separation agreement in Pennsylvania require a court hearing?

No, it does not.