Divorce Frequently Asked Questions: Separation Agreements
- Can a court throw out (vacate) my separation agreement?
- If I have a decree of legal separation, can I change that to be divorced?
- I have a decree of legal separation, what do I need to do to make it a divorce?
- What is the difference between legal separation and divorce?
- What is the difference between a divorce decree and a separation agreement?
- If I Can Just Get My Spouse to Sign a Separation Agreement Is It Binding?
1. Can a court throw out (vacate) my separation agreement?
A separation agreement is the final agreement in a divorce case setting forth the agreed upon resolution of all issues, including property division, alimony, visitation, custody, child support, or any other relevant issues. Separation agreements are governed by C.R.S. 14-10-112 and are generally considered binding. However, as with Prenuptial agreements, there are situations in which a court can vacate all or part of a separation agreement based on certain circumstances.
C.R.S. 14-10-112(2) specifically indicates, “the terms of [a] separation agreement, except the terms providing for the allocation of parental responsibilities, support, and parenting time of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or request of the court, that the separation agreement is unconscionable.”
In essence, if the court determines, whether on its own, or upon motion of one of the parties, that a separation agreement is so grossly unfair as to provisions relating to property division, debt allocation, or alimony, it can invalidate those provisions. Without finding it to be unconscionable, the separation will be deemed binding as to those issues.
Parties should keep this in mind when negotiating agreements. If one side to an agreement ends up with 95% of the marital estate, a court or the other party may have grounds to later challenge the agreement. Our attorneys have seen situations in which parties draft and sign separation agreements prior to providing required financial disclosures. This can also be an instance in which a court may void some or all the provisions of a separation agreement. Most courts will view the issues of child support and custody as still subject to the court’s oversight and approval, regardless of what the parties agree to, particularly child support.
Parties will sometimes set forth provisions in a separation agreement regarding child support, only to find out that they did not follow the child support guidelines set forth in statute. An experienced Denver child support attorney will have seen situations in which judges will negate the child support agreement arrived at by the parties and enter orders following the guidelines. When drafting a separation agreement, parties and attorneys should be aware of the potential pitfalls and statutory nuances that may affect the binding nature of the agreement or subject it to invalidation by the court.
2. If I have a decree of legal separation, can I change that to be divorced?
As opposed to filing for a divorce, sometimes people choose to become legally separated. Though the process is largely the same, the end result of a legal separation is the issuance of a “Decree of Legal Separation,” as opposed to a “Decree of Dissolution of Marriage.” The Decree of Legal Separation indicates that the parties are legally separated, yet still married.
In a legal separation case, the rights regarding property, alimony, custody, and child support are still determined, just as with a divorce. However, without the marriage being formally dissolved via divorce, the parties are still husband and wife. Pursuant to C.R.S. 14-10-120, parties who are legally separated via a decree can convert that decree to a decree of dissolution, or divorce, by filing a motion with the court requesting that the case be converted to a divorce.
There is a 6-month statutory waiting period from the time the decree of legal separation enters. After those 6 months, the motion can be filed and served upon the other party. There is no legal basis to object to converting the decree to one for divorce and the court will grant the request once made. Sometimes people who are legally separated are concerned they will have to go through the process all over again to get divorced. Fortunately, statute provides an easy remedy to get things done without having to begin a whole new case.
3. I have a decree of legal separation, what do I need to do to make it a divorce?
Once a decree of legal separation enters, the parties must wait a period of 6 months prior to converting it into a decree of dissolution of marriage. If a party to a divorce case decides to convert the matter to a divorce, he or she only needs to file a brief request or motion with the court. There is no legal basis for the other party to object to the separation decree being converted to a divorce decree, other than relates to the 6 month period. Our firm can advise you regarding whether to file for legal separation or divorce in your Denver case.
4. What is the difference between legal separation and divorce?
Out of the hundreds of Denver area custody and divorce cases handled by us at Plog & Stein, only a handful have started and ended as legal separation cases. A legal separation is different from a divorce in that the parties are technically still married, but separated. The procedures for legal separation are essentially the same as divorce.
Both types of cases start with the filing of a petition and summons, and deal with the same issues, whether custody, property division, alimony, or otherwise. Both cases ultimately end with the court entering a decree. With a legal separation, the decree will reflect such, as opposed to indicating that the marriage is permanently dissolved. Once a decree of legal separation enters, either party may seek to convert the decree to a decree of dissolution of marriage (divorce) after 6 months.
There is no defense to a motion to convert the decree to one of dissolution. From a practical standpoint, the only reason most parties will entertain the entry of a decree of legal separation is so that one may remain on the other’s health insurance or share in some sort of other benefit which will terminate if the parties are divorced. With the same potential for arguing and acrimony in a divorce case, it is not uncommon for one party to a legal separation case to seek conversion to a divorce case mid-stream.
5. What is the difference between a divorce decree and a separation agreement?
At the conclusion of each Colorado divorce case, whether reached via a court hearing or an agreement, a decree of dissolution of marriage is entered. The decree is generally a one page document indicating that the parties are divorced. The decree will also contain potential references to a name change for the wife and specific notations that each party will follow the final orders in the case, whether a “separation agreement” or permanent orders entered by the court.
People often confuse the divorce decree with a separation agreement. A separation agreement is essentially a document or agreement setting forth the specific settlement terms arrived at by the parties. It will detail all issues, including custody, visitation, property and debt division, child support, and alimony (maintenance). Though the decree certainly matters from the standpoint of officially letting you and the world know you are divorced, it is the separation agreement that needs to be followed. Pursuant to C.R.S. 14-10-112, a separation agreement is essentially a binding contract, which is ultimately made a court order by reference to it in the decree.
