What is a separation agreement?
In Colorado, parties who are going through a separation or a divorce can enter into an agreement that lays out basic provisions that govern after the are separated or divorced. A separation agreement can provide for maintenance, who gets the property, how parental responsibilities are allocated, the amount of child support, and the parenting time each parent is entitled to. This document is then submitted to the court, which must approve the provisions relating to property distribution and maintenance unless the agreement is unconscionable. However, a court is not obligated to accept the agreements provisions that govern parental responsibilities, child support, or parenting time. If the court accepts the provisions, then they merge into a court order. This means that the agreement may be enforced in the same way that any other court order could be enforced, which includes the possibility of a non-compliant party being held in contempt of court. However, once it merges, the agreement is no longer enforceable as a contract. This means that even if one side is not complying with the order, the other party must still comply or risk being held in contempt as well.
What are the typical provisions in a separation agreement?
Many attorneys wisely try to separate the financial aspects of a divorce (or separation) from the provisions that have to do with the parenting of children. However, if a couple has children, many attorneys concern matters of financial support in the main separation agreement. Some typical provisions are:
- Child Support: This provision should specify which parent pays, when support is due, how support is paid, and conditions that may result in modification or termination of support.
- Medical Insurance for Minor Children: Often the parties will agree that one of them will pay for the medical insurance of children. This section will state who has that responsibility, how the responsibility might shift, and how medical plan documentation should be shared.
- Life Insurance: Especially when minor children are involved, either of the parents (or both) may have an obligation to have a life insurance policy that will provide funds for the child in the event of the parent's death.
- Information Sharing: Because the amount of child support can be modified based on changes to a parent's income, agreements frequently provide for an annual exchange of financial information for both parties.
- Maintenance Obligations: This is what many people think of as alimony. While there are guidelines, the parties can agree to a different amount. This section may also include provisions for modification of maintenance or waiver.
- Property Classification: This section will identify what property is subject to division and what property is non-marital property (which is not subject to division).
- Property Transfer: This section deals with existing real and personal property and who will have possession and legal title to it after the divorce. This section will also lay out how other assets will be distributed including retirement benefits, cash, and bank accounts.
- Debt Service Plan: This section will deal with who has the responsibility to pay existing debts and how they will pay that debt. In the case of previously jointly held property, this section may require refinancing of any encumbrances, mortgages, or loans against the property into one spouse's name.
- Taxes: This section may require the parties to file a final joint return, and it may specify which parent gets to claim certain credits for children (however, this cannot override the Internal Revenue Code).
- Professional Fees: This section may allocate the cost of the attorneys fees or require each party to pay their own.