Separation Agreements

Question 1

When is a separation agreement valid & enforceable?

Answer 1

• if the agreement is:
  
  1. in writing
  2. sihned
  3. acknowledged or proved in a manner required entitled to deed to be recorded

Question 2

What may the separation agreement include?

Answer 2

1. a contract
   
   1. to make a testamentary provision
   2. a waiver to elect against the will
2. Provisionfor the ownership, division, distribution of separate & marital property
3. Provisions for the amount & duration of maintenance provided such terms are fair & reasonable and not unconsciouable @ time of final judgment
4. provision for custody, care, education & maintenance of the child(ren) of the parties

Question 3

How does fraud, duress & lack of capacity effect a separation agreement?

Answer 3

• separation agreement may be set aside
• challeneged on the basis of fraud, concealment of networth
• involve fiduicary relationships & require the utmost of good faith

Question 4

How do you determine whether the provisions of a separation agreement are “fair & reasonable” (the validity)?

Answer 4

1. ct consider the financial position of the ptys
   
   • cannot require the dissolution of marriage
   • cannot precure grounds for divorce
   • cannot cause the financially weaker spouse to become incapable of self support & therefore likely to become a public charge
2. a sngle atty represent both subjects it to strict scrutiny
3. valid agreement bars action for separation & alimony BUT does not bar action for divorce
   
   1. any action to co-habitate w/intent to reconcile destroys the agreement
4. a pty who accepts the benefits of a separation agreement may not later challenge its validity

Question 5

How is the separation agreement merged into the divorce decree?

Answer 5

• can merge into the divorce decree:
  
  • terms are not changed
  • other pty can disaffirm for fraud, over reaching or the like
• If merged, it is no longer enforceable as a K oblifation

Question 6

How can the separation agreement be incorporated?

Answer 6

• survives the judgment of divorce and is incorporated by reference

Question 7

How is the separation agreement modified?