Divorce – Separation Agreements – United States

PROPERTY SETTLEMENT AGREEMENTS

General Statement of Law: A general statement of the law means the law is followed and recognized in most states.  Some states vary the general law rules slightly and a few states may not recognize the general statement at all.  What follows is a general statement of the law relating to separation and property settlement agreements.

Definition: A separation agreement is a contract between a husband and wife when they separate from each other in which they resolve such matters as property division, debts, custody and support. It does not change the legal status of your marriage. No law requires a separating couple to execute a separation agreement, but it is a wise idea if there are debts, children, support claims or property involved and the parties want to settle these matters in writing with binding and enforceable promises.

In most States separation and property settlement agreements are valid and binding if properly executed.  Most, if not all, states require that the signatures of the parties by acknowledged by a notary public.  However, courts generally retain the right to approve, modify or disapprove provisions relating to custody, support and visitation.

Courts will approve the agreement if it is fair, equitable and reasonable.  Courts may disapprove agreements if they are unconscionable or not free of collusion.  Except for custody, support and visitation, matters settled by separation agreement are not subject to subsequent modification by court except as agreement itself may prescribe or parties may subsequently consent. Agreements can generally be entered into after separation either before or after a divorce action is filed.  Agreements may be voided if there is reconciliation after separation.  Once a divorce action is filed, the agreement is usually incorporated into a final decree or judgment of divorce. Once so incorporated, the agreement can usually be enforced by a contempt action if one party fails to abide by the terms of the agreement.

A separation agreement does not make the parties free to date others.  Any sexual relations with a person who is not your spouse is adultery if it occurs before you are divorced.

State by State Separation Agreement Information:

Alabama – Generally valid.
Arizona – Generally Valid under general law statement.
California – Generally Valid.
Connecticut –  Generally Valid under general law statement.  Court reviews for fairness. Agreement approval or court makes other orders for disapproved provisions.
Colorado – generally valid under §14-10-112, C.R.S. 1999.  Subject to the standards of voluntariness, fair disclosure, and conscionability applied to marital agreements under §14-2-307, C.R.S. 1999.
Delaware – Law prefers settlement at time of separation.  Must be free of collusion.
District of Columbia – Agreements encouraged and are enforced in the absence of fraud, duress, concealment, or overreaching.
Florida – Agreements approved.
Georgia – Separation Agreements after separation, in contemplation of separation and after filing divorce are enforceable.
Illinois – Agreements valid after separation. Reviews agreement for unconscionablility. Follows general law statement.
Indiana – Generally valid under general law statement.
Kansas – Generally valid. Must be incorporated and confirmed in decree. Follows general statement of law.
Kentucky – Agreements encouraged.  Follows general law statement.
Maine – Agreements valid if fair. Follows general law statement.
Maryland – Agreements binding and enforceable. Valid whether living separate or together. Generally follows general law statement. Court may also modify alimony unless agreement provides otherwise.
Massachusetts – Generally valid. Follows general law statement.
Michigan – Generally valid.
Mississippi – Generally valid. Follows general law statement.
Missouri – Generally Valid.
New York – The “no-fault” ground for divorce in New York provides that an action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on the ground that: The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed and acknowledged by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. Montana – Generally valid.  Agreements are binding on court after entered into a decree of legal separation or dissolution of marriage unless it finds agreement unconscionable.
Nebraska – Where dissolution or separation is decreed, parties can enter into written property settlement. Follows general law statement
Nevada – Agreements favorably considered and usually approved. When divorce entered, decree should provide that agreement is not merged but shall survive to avoid merger.
New Hampshire – AGREEMENTS FOR SEPARATION WITHOUT LEGAL PROCEEDINGS ARE INVALID.
New Mexico – Generally valid.
North Carolina – Agreements valid. Follows general law statement.
North Dakota – Agreements valid. Follows general law statement.
Oklahoma – Agreements not binding upon the court. Court closely scrutinizes to determine if reasonable, just and fair.
Pennsylvania – Agreements valid if not directly conducive to procurement of divorce. Court may incorporate Agreement into decree. Agreements enforceable to the same extent as court order even if not incorporated into decree. Not subject to court modification unless agreement authorizes except as to custody, support and visitation.
Rhode Island – Generally valid.
South Dakota – Parties cannot alter their legal relations by contract with each other, except that they may agree in writing to an immediate separation and may make provisions for the support of either of them and their children during such separation. Mutual consent of parties is sufficient consideration for such contract.
Tennessee – Generally Valid.
Texas – Agreements valid if actually separated.
Virginia – Generally valid.
Washington – Generally valid. May be recorded and notice of it published. Binding on court, except in terms relating to parenting plan, unless unfair. Child support may be included in separation contract and must be reviewed in subsequent proceedings for compliance with law.
West Virginia – Agreements generally valid
Wisconsin – Generally valid.
Wyoming – Recognized and are enforced if incorporated into divorce decree.

State Residential (Residing) Requirements Prior to Filing a Divorce:

Alabama – 6 months
Alaska  – 30 days
Arizona  – 90 days
Arkansas – 60 days
California – 6 months
Colorado – 90 days
Connecticut – 1 year
Delaware – 6 mos.
District of Columbia – 6 months
Florida – 6 months
Georgia – 6 months
Hawaii – 6 months
Idaho – 6 weeks
Illinois – 90 days
Indiana – 60 days
Iowa – 1 year
Kansas – 60 days
Kentucky – 180 days
Louisiana – 6 months
Maine – 6 months
Maryland – 1 year
Massachusetts – None
Michigan – 6 months
Minnesota – 180 days
Mississippi – 6 months
Missouri – 90 days
Montana – 90 days
Nebraska – 1 year
Nevada – 6 weeks
New Hampshire – 1 year
New Jersey – 1 year
New Mexico – 6 months
New York – 1 year
North Carolina – 6 months
North Dakota – 6 months
Ohio – 6 months
Oklahoma – 90 days?
Oregon – 6 months
Pennsylvania – 6 months
Rhode Island – 1 year
South Carolina    3 months (both residents)
South Dakota – None
Tennessee – 6 months
Texas – 6 months
Utah – 90 days
Vermont – 6 months
Virginia – 6 months
Washington – 1 year
West Virginia – 1 year
Wisconsin  – 6 months
Wyoming  – 60 days

Disclaimer: All information provided on this page is believed to be correct but no liability is assumed or accepted for inaccuracies.