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What Should Be Included in Your Separation Agreement?


Many spouses expect divorce to be an ongoing battle, but as a seasoned New York divorce attorney and mediator, I tell many spouses it doesn’t have to be! There are constructive ways to tackle divorce and create a battle-free path that is non-adversarial and more cost effective.

An important part of the divorce process is developing an agreement with which you are both satisfied. This contract should cover everything that is important to you both, like custody of your children, support, maintenance, separation and marital property, division of your assets, and personal property. There is a lot to consider.

You will need the help of a divorce mediator or attorney to create a solid agreement. I have helped thousands of couples design a separation agreement that is thoughtful and thorough! I can help you too!

As a divorce attorney/mediator, I have developed thousands of separation agreements over the past 35 years.

Many of my clients ask, “What should be addressed in our separation agreement?” I have put together a separation agreement checklist for them that may be helpful to you if are considering divorce.

A separation agreement is a contract in which you and your spouse agree on all the terms of your divorce. You will discuss and make decisions about various issues relevant to your divorce such as:

  • Equitable distribution of marital property;
  • Spousal alimony/rehabilitative maintenance;
  • Division of retirement accounts, pensions, and deferred compensation;
  • Child custody, parenting arrangements, and child’s residence;
  • Child support;
  • Childcare, other activities;
  • Health insurance;
  • Life insurance; and
  • Tax consequences.

Here are some Separation Agreement highlights:

1. Assets and Property

You will first review what are separate and joint assets. Property owned by one spouse prior to the marriage is separate property and remains separate property.

In New York, anything acquired during the marriage is marital property. Marital property is subject to fair distribution upon divorce--not necessarily 50-50. You will be deciding on division of all property, bank accounts, pensions, retirement accounts, and other assets. You and your partner will have to discuss how you wish to split what you have accumulated together. Communication during this process is key. You may have to work with a divorce mediator or attorney to develop a sound agreement.

In addition, you will address individual and joint debts such as mortgages, bank loans, credit card debts, and car loans. Personal property will be considered too! Like watches, gadgets, computers, iPads, and phones.

2. Children, Custody, Visitation, and Child Support

First, there should be a discussion about custody. Joint? Sole? Residential? Zones of influence? Sole custody had traditionally been the most common choice years ago, but today, divorced parents are choosing arrangements in which joint custody is more common. I can help with suggestions about possibilities.

If the children are going to live with one parent more than the other, that person should be referred to as the “residential parent.”

With visitation, you will design a plan with the other parent. This schedule will include details like days of the week, weekends, time visitation starts and stops, and holidays.

You will also discuss child support. Child support cannot be waived. There are child support guidelines for every state. There are also expenses for childcare and extracurricular expenses like dance lessons, camp, or private school, to name just a few.

3. Spousal Support

Spousal support provides financial assistance when there is a disparity in the income of the spouses. It helps a stay-at-home parent be self-supporting.

The amount of spousal support should be decided by both parties. There are guidelines and statutes to help with support amounts.

If you would like to discuss other components of a Separation Agreement, give me a call.

Divorce doesn’t have to be quite so difficult financially or emotionally.

I encourage couples to try the amicable, less stressful, less expensive path of mediation.

Divorce can be a civil series of discussions and decisions that can be productive and helpful to you and your family.

I can help you choose the path that is right for you. Call me today to schedule your free consultation and discover how I can help you create a separation agreement that works for both of you.

During the ongoing COVID-19 pandemic all our FREE 1 HOUR CONSULTATIONS are conveniently conducted virtually to reduce risk.

Continue to stay healthy and safe!

Warm regards,


Call New York Divorce Lawyer Lois Brenner now to book your Free 1 Hour Consultation.


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