SHOULD A SEPARATION AGREEMENT BE PART OF MY DIVORCE CASE?
Dec. 18, 2019
There might be a perception that a divorce in Colorado will be acrimonious and the parties will battle over every aspect of it. That is true in some instances, but in others, the parties want to come to a reasonable agreement and move forward as efficiently and smoothly as possible. In cases where it is believed to be possible for the sides to negotiate, a separation agreement could be a viable alternative. Before taking this step, it is important to understand the law for a separation agreement and possible divorce.
A written separation agreement is used to have an amicable agreement. In it, there will be provisions to detail how much maintenance is paid and by whom. It will also determine how property is disposed of and split regardless of who owns it individually or jointly. The agreement can also state how parenting issues are handled including custody, support and parenting time.
All aspects of the agreement will be binding, except for child-related concerns. But, other parts of the agreement will not be binding if the court finds that the agreement is unfair based on economic considerations and other evidence.
Once the agreement has been found unfair (legally referred to as unconscionable), it can ask the parties to revise it. Or, it can make orders for property, maintenance and support. The terms will be listed in the agreement and the parties will be ordered to adhere to it unless it says otherwise. If the agreement states that its terms will not be part of the decree, it will detail the agreement and say that the court decided that the agreement not unconscionable.
The court can use enforce the agreement as it sees fit including ordering a person to be held in contempt if it is not followed. Except for parenting issues, there can be limits on modifying the terms or these can be precluded completely if this is part of the agreement.
If the circumstances warrant it, a separation agreement can be a useful part of a divorce as it will list how the case will be resolved without rancor or the need for significant court intervention. However, it is important to have a fair agreement and to understand what signing it means.