10 Things to Discuss when Drafting an Interim Separation Agreement Prior to Divorce

An interim (or temporary) separation agreement is a written contract that both parties sign after separation but before divorce.  This contract specifies how each party will conduct himself or herself post-separation.

An interim agreement is not a contract that comprehensively addresses the division of all assets – this document is merely a bandage that puts in place specific temporary terms while you and your spouse figure out your final agreement.  For many people, it’s an emotional and difficult process to decide on final terms right after separation.  By putting in place an interim agreement, each party can take a deep breath knowing that their assets are protected during separation.

Some common terms to discuss and consider, including in an interim agreement, are as follows:

• Date of separation. Your date of separation (when you decided that you wanted a divorce) is significant because it starts the clock for when you are permitted to file for divorce on a no-fault basis.  However, this is an important date that should be considered carefully.  In Virginia, for example, your date of separation is significant for the division of certain assets, such as retirement accounts.  It would be advisable to discuss your date of separation with a family law practitioner before you put it in a legally binding contract since this date has broader implications in your final agreement.
• Custody. If you’re not living under the same roof and can reach an agreement about a time-sharing schedule for your children, you can put your agreed-to schedule in an interim agreement.  If you’re not able to reach a time-sharing schedule (or don’t wish to commit it to writing for fear that it will set the permanent schedule) but have a specific trip you’d like to take alone with the kids, your agreement can simply address upcoming vacations while leaving bigger discussion points for later.
• Status Quo of Marital Assets. Your agreement can specify whether the acquisition or disposition of certain marital assets (assets accumulated during marriage) is permitted during separation.
• Status Quo of Insurance. Your agreement can further specify that all insurance currently in place, including health insurance and life insurance, should remain in place and that beneficiary designations of all insurance policies will remain the same until further agreement is reached.
• Status Quo of Debts. Your agreement can state whether either party is permitted (or not) to borrow against marital assets during separation.
• Expenses. Your agreement can state how certain monthly expenses will be paid – for example, payment for your mortgage, expenses for all jointly owned properties, vehicle expenses, payments due on credit cards, and how you will each allocate your children’s expenses. The agreement can further specify whether you will continue to use joint bank accounts (and how joint accounts will be used) or whether payments should be made from separate accounts.
• Access to Home. If you have jointly owned property and you are living separately (not under the same roof), you can specify who has access to the home and when.
• Payment of Taxes. If taxes are due soon, your agreement can specify how and when tax payments will be made.
• Payment of Attorneys’ Fees. If you are each consulting with an attorney, you can specify how those expenses will be paid.
• Mediation. If you both wish to go to mediation (with or without your attorneys) to draft and discuss a comprehensive agreement, you could specify that desire to go to mediation to come to a final agreement in this document as well.

Hopefully these terms help guide your discussion with your spouse upon separation.  Before you sign any document, however, you should consult with an experienced family law attorney regarding the terms of your proposed agreement to make sure those terms are advisable in your particular case.