What Is a PA Separation Agreement?
At its core, a PA separation agreement is a contract that legally formalizes the end of a marriage. In Pennsylvania, either spouse, or both married spouses together, can initiate a separation agreement to outline all of their rights and obligations moving forward.
For some couples, a separation agreement is simply a necessary step between marriage and divorce that will help them move forward . For others, a separation agreement is invaluable in that it gives both parties the security of knowing how issues such as child custody, child support and equitable distribution of assets will be addressed in the short and long term.
In practical terms, a separation agreement is often a necessary step leading up to divorce. Although Pennsylvania residents can request a divorce without simultaneously entering into a separation agreement, doing so does not eliminate the need for some type of marital settlement.
Legal Requirements for a PA Separation Agreement
For a PA Separation Agreement to be valid it must meet certain legal requirements. In Pennsylvania, the only statutorily required element of a separation agreement is that the parties must not reside in the same residence. What does this mean? Simply stated, the parties can have joint ownership for purposes of a tax credit or own property as tenants in common, but they must abide by separate residences for purposes of determining where to send mail, where to stay overnight, and where to go on lunch and/or dinner dates in order to qualify under the statute.
Other than meeting the statutory requirement of residing in a separate residence for purposes of determining where to send mail, where to stay overnight, and where to go on lunch and/or dinner dates, there are no other legal requirements for entering into a separation agreement. Like a prenuptial agreement parties are free to enter into the terms of a separation agreement and make whatever terms they desire. It can be said in fact that parties can and often do create agreements that are contrary to law. In such circumstances, if the matter should proceed to trial, the court would treat such provisions as if they were not contained in the agreement.
Common Provisions of PA Separation Agreements
A PA separation agreement can contain a multitude of provisions. Below is a description of some of the more common ones.
Child Custody
When parents separate, there may be visitation issues and/or custody decisions that require addressing. Through a separation agreement, parents can determine whether one will have primary physical custody of the children, whether they will share custody, or whether the children will not have contact with one parent. Parents can determine how throughout the week, the children will reside at each parent’s home. If the parents are sharing custody, they typically will agree upon a specific schedule for the children to spend time with each parent.
If there are any unique circumstances related to the children, they can be addressed. The separation agreement sets forth the visitation and/or custody schedule and is signed by the parents and notarized. The separation agreement then is enforceable.
Division of Property
When two people are married they own certain property together. Oftentimes, prior to a separation, they will gain certain property individually. A separation agreement will set forth how the property will be divided. The assets that can be divided in a separation agreement include the home, bank accounts, retirement and investment accounts, timeshare properties, vehicles, etc.
Once the separation agreement is signed and notarized, it is binding and enforceable. It is important to note that a separation agreement cannot be executed if there are children under the age of 18 years who are living with both parties. Also, a separation agreement cannot be executed while a divorce is pending in Pennsylvania.
Spousal Support
When two parties who are married separate and one is not working, the spouse who is working will have a monthly support obligation to pay the supporting spouse a specific sum of money each month. The support obligation must be paid on-time. If it is late, penalties will apply. If the parties agree to an amount that is less than the guidelines set forth in the Pennsylvania Support Guidelines, they can include this in the separation agreement if one party is waiving the right for the support statute to apply.
Example:
Under the Pennsylvania Child Support Guidelines an income based support share obligor who is earning $1,000.00 per week (4,333.33 per month) while the obligee is earning $.00 per week (0.00 per month) will be required to pay $444.00 per month. If the parties agree in their separation agreement that the obligor will pay $250.00 per month instead of $444.00, then the obligor will be waiving the right for the support guidelines to apply.
Creating a PA Separation Agreement
The process of drafting a PA separation agreement usually begins with separate consultation with counsel. While clients may consult with counsel together, each spouse should have the benefit of individual consultation with an attorney – the sole exception is in the case of a marriage under 2 years where the agreement is short and fairly straight forward. Otherwise, having a separate attorney will protect the interests of both spouses, and prove to the court that the agreement was entered into knowingly.
Once an individual has consulted with his or her own attorney, then the parties should come together with attorneys in two separate meetings to attempt to negotiate the terms of the Separation Agreement. In the first meeting, counsel can review proposed terms and discuss and educate the clients on relative pros and cons of the terms and the legal ramifications of the agreement. Depending on how many items are up for negotiation, this meeting may take more than one session. Most clients and attorneys will break for a period of time, especially if there are substantial financial or other complicated issues. If this is the case, that break may last from the rest of the day to a week or more. After both counsel and both parties have reviewed the terms of the agreement, negotiations may take place, and a final draft is prepared by one of the attorneys and forwarded to the other attorney for comments and final review. At this point, the parties will be able to sign the Agreement, where a notary will witness the transaction. Once signed, the Separation Agreement will be filed with a Request for Approval (with a proposed order), along with an Affidavit of Consent signed by both parties. The Court will enter the Order approving the Agreement and it will be effective. If there are children involved, the court will review the agreement and the parents will have a substantial period of time to attach an Affidavit of Consent, once the children’s school schedule & insurance have been started along with the term of the deed of transfer. The Agreement is not effective until that time.
Modifying a PA Separation Agreement
A Separation Agreement in Pennsylvania may be altered after it has been executed. What this means is that if people have a change in their circumstances, if things aren’t working out in accordance with their Agreement or if they want to add certain provisions that were overlooked, the Agreement can be amended by the parties.
If parties would like to amend a Separation Agreement, the best way to do so is to enter into a separate Agreement which amends the original Agreement. Pursuant to Pa.R.C.P. 1920.25(c) a Separation Agreement shall be enforceable if "expressly based on the statutory provisions of 23 Pa.C.S . §3105, when it completely disposes of all economic claims arising out of the marriage, and respected by the court as it respects the interest of third parties." An Amendment to a Separation Agreement, however, will not be evaluated under the same standard as a Separation Agreement, but rather it will essentially be a contract modification, and such modification will be enforceable as long as the agreement is upheld by the court. If an Agreement is entered into by the parties after a Divorce, the Agreement will be evaluated as a Pre-Nuptial Agreement would be evaluated, pursuant to the state statute, and will be upheld if it contains all required elements of such an Agreement.
Enforcing a PA Separation Agreement
Separation agreements, whether they are put in place by way of court order or by a written document executed in a more informal fashion, are enforceable by the court. The law requires the agreement to be fair and reasonable. While terms in an separation agreement may be different than the corresponding term from another agreement, the terms do have to be fair and reasonable, and not unconscionable.
If a separation agreement is violated by one party and the other party wants to enforce the agreement, the party wanting enforcement can file a Petition for Contempt with the Court. If the Court agrees that a violation has occurred, it can enforce the agreement by entering an Order to require the offender to comply with the terms of the agreement. It could also punish the violating party in some fashion – for example, order payment of a fine, costs, counsel fees, or even jail time.
Parties can also include an arbitration provision in their separation agreement which can provide for a less expensive and expedited means of enforcement through the use of an arbitrator.
In short, PA separation agreements are enforceable through the Court or private arbitration. Where the terms of the agreement are fair and not unconscionable, a Court is almost certain to enforce them.
PA Separation Agreement vs. Divorce Decree
The PA separation agreement is a unique animal unto itself. There are many reasons that folks might want to have a separation agreement. Often times, it is just a temporary measure while folks decide if they want to get divorced or not. Sometimes it comes out of a bargain because maintaining an estranged spouse on insurance is too expensive and a spouse can get health insurance through the other spouse if everybody is still married. There are other business reasons for entering into a PA separation agreement. But, one thing should be made clear: a separation agreement is wholly different than a divorce decree.
A divorce decree is an order of the court that finalizes the marital status of the parties and disclaims any further obligations between the parties. It is a stamp of finality on your marital relationship. A PA separation agreement is just that – an agreement between the two spouses to do X, Y and Z. A PA Separation Agreement is NOT an Order of the court . You can still sue your spouse for divorce and obtain a divorce if you entered into a PA separation agreement. Indeed, in part, this is why people enter into a PA Separation Agreement because they want the divorce but are stuck because of the problem with insurance, or one party does not want a divorce.
A PA separation agreement should be done in such a way that it provides coverage for the spouse that is going to remain on the health insurance, or it should provide for insurance coverage from another source. If there is life insurance, disability insurance, retirement plans and the like, they should be addressed. Child support issues should be addressed, as they are hard to modify.
A PA separation agreement is not meant to be a divorce. They are very different. That is why the term ‘PA Separation Agreement’ is used instead of ‘PA Divorce Agreement.’ As always, if you have questions about these agreements, consult with a family law attorney and get to it.