A separation agreement is a contract between two married parties that identifies the rights, responsibilities and duties each party will undertake while they are in a state of separation. Unlike a postnuptial agreement, a separation agreement can be terminated by the subsequent reconciliation of the parties. Where spouses desire to settle and determine their respective property rights, finally and for all time, their agreement should be construed as a postnuptial agreement.

Postnuptial Agreement Or Marital Settlement Agreement

A postnuptial agreement is a contract entered into after marriage by a husband and wife generally involving the property or property rights of the parties. A postnuptial agreement differs from other types of marital agreements in that it generally settles property rights definitely.

Postnuptial, post-marital settlements, or marital settlement agreements, are marital agreements entered into by a husband and wife during their marriage to define each spouse's property rights in the event of the termination of their marriage by death or by divorce and, as such, the rules governing marital agreements are generally applicable to postnuptial agreements. Such agreements, like ante-nuptial agreements or premarital, are contracts governed by contract law, and include separation and property settlement agreements between spouses, the latter of which are contracts that divide up the assets and debts of divorcing spouses.

Balancing Individual Agreements With Public Policy


Principles applicable to ante-nuptial agreements are, generally, equally applicable to postnuptial agreements. Matters of temporary or permanent spousal support and child support may, by postnuptial agreement, be made subject to an agreement to arbitrate. A postnuptial agreement which provides for an automatic change of custody without court approval is, however, void as against public policy.

A husband and wife, in contemplation of separation and divorce, may contract between themselves to settle and adjust all their property rights which have arisen out of the marital relationship. Such separation agreements are generally favored by the courts as a peaceful means of terminating marital strife and discord so long as they are not contrary to public policy.

Voiding Agreements That Promote Divorce

The line between a valid separation agreement or family settlement and a bargain offensive to public policy is often dependent upon whether it is viewed as facilitating or promoting divorce. Any agreement, whether between husband and wife or between either spouse and a third person, if it is intended to facilitate or promote a divorce, is against public policy and void. Thus, for example, the law provides that agreements between persons contemplating marriage or between married persons are unenforceable if they operate to "change some essential incident of the marital relationship in a way detrimental to the public interest in the marriage relationship," and specifically provide that "A promise that tends unreasonably to encourage divorce or separation is unenforceable on grounds of public policy."

While the courts are in agreement that bargains which promote divorce offend public policy, there are wide divergences of opinion among the various jurisdictions as to what kind of agreements, in fact, facilitate or promote separation and divorce.

Nevertheless, there is a general consensus among the courts that separation agreements are to be construed like other contracts and require the same essential elements, and property settlements or other postnuptial agreements, whether in contemplation of divorce or otherwise, are generally held to be binding when they are shown to be fair and regular and not the product of fraud, duress, or undue influence; and certainly when they have been fully executed they will be given effect. Also, note that the failure of a party to read such an agreement or to be represented by counsel is not grounds to invalidate the agreement.

Reconciliation Voids The Separation Agreement


By contrast, it has been held that where the parties to a valid separation agreement reconcile, resuming their marital relationship, it effectively abrogates or voids the separation agreement. Property settlement and postnuptial agreements generally, both at common law and under modern statutes, cover many subjects, ranging from:

  • Provision for support and maintenance of the dependent spouse and children
  • Education and religious training of the children
  • Transfers of various property interests from one spouse to the other
  • Dispositions of property rights, real and personal

Increasingly, parties to a strained marriage will enter into a written "reconciliation agreement," the terms of which often share characteristics of both property settlement and premarital agreements. Because the parties, following execution of such an agreement, embark on what might be described as a new marital relationship, it is not surprising that many courts measure the validity of these agreements as if they were ante-nuptial or premarital agreements. Often, postnuptial agreements or property settlements will include mutual releases, waivers, and provisions for termination of spousal obligations in the event of remarriage of the supported spouse.

Separation Can Require Many Steps

Separation agreements typically include not only the above provisions, but in addition stipulations governing custody and maintenance of the parties' children, as well as visitation privileges. An undertaking for the dissolution of the marital status by appropriate religious ceremonies is also occasionally inserted. Other common provisions include agreements to convey title, assign or otherwise transfer or encumber land, to establish or terminate tenancies, whether joint or by the entireties in those jurisdictions which still recognize them in one form or another, or to create or divide community property.

Perhaps not surprisingly, these interspousal agreements have been productive of considerable litigation, not only with respect to what property is included and what the terms of a particular agreement mean or encompass, but also with respect to what obligations rest upon the respective spouses, both as to financial and personal matters.

Emotions Can Blur The Contractual Nature Of Separation Agreements


Despite the fact that separation and divorce have become more commonplace and readily available in our society; despite modern legislation making marital dissolution less complex and more uniform and equitable; and despite the fact that marital dissolution carries less social stigma than it formerly did, and that modern couples have greater access to legal services and approach separation and divorce with greater sophistication, it remains true that both separation and divorce tend to be traumatic under the best of circumstances. Regardless of how amicable the separation is in the beginning, it often deteriorates into an emotional adversarial relationship. Thus, while these interspousal agreements are generally governed by the same principles that apply to ordinary contracts, the underlying relationship of the parties is decidedly non-contractual and instead familial. And the cases often, regardless of whether articulating this fact, appear to take it into account in reaching their outcomes.

Get The Facts About Separation From An Experienced Attorney

It is essential that an attorney is obtained to consult with the client on the implications of a wide variety of agreements between spouses, as well as the contents of such agreements. At Shaffer & Engle Law Offices, LLC, we specialize in determining the goals our clients intend upon attaining, provide competent and aggressive application of the law to their case, and move with expediency to provide closure to our clients.

Contact our Harrisburg family lawyers if you have questions regarding legal separation. Call 717-827-4074.