In recent years, increasing numbers of people opted to draft their own separation agreement (also sometimes referred to as a property settlement agreement or marital settlement agreement) without hiring a lawyer. By keeping lawyers out of the process, couples can retain more control over their personal affairs and save thousands of dollars on legal fees. Of course, the risk of doing your own separation agreement is that you may not have sufficient knowledge of your state's domestic relations laws, and thus end up with an agreement that cannot withstand a legal challenge by one of the parties if that should occur.However, there are some basic legal principals applicable to legal separation agreements that apply in virtually all 50 states. Perhaps the most important principal is the requirement of financial disclosure. This means that both parties to any marital agreement must share with each other full and complete financial information. If one party withholds material information regarding income, assets, liabilities or other financial matters, he or she may be deemed to have violated his or fiduciary responsibility to the other. Accordingly, prior to the execution of a property settlement agreement, each party should provide the other with a complete, written disclosure of all relevant financial matters.In addition, it is important that neither party be subjected to undue pressure. This means that both the husband and the wife must be given ample opportunity to consider the proposed terms and conditions, and that there is an opportunity to engage in negotiation regarding the agreement. Even if lawyers are not retained, both parties should acknowledge in the body of the agreement that he or she is aware of the opportunity to retain independent legal counsel and has voluntarily elected to proceed without an attorney.While courts generally enforce the provisions of separation agreements that address property matters (equitable distribution and/or community property division), the issue of child support is frequently treated differently. In most states, an agreement between parents regarding child support is subject to subsequent modification by a court. This most frequently arises when a party to a separation agreement subsequently alleges that the separation agreement provides for inadequate support or a substantial change in circumstances occurs after the separation agreement has been signed.Sometimes, the noncustodial parent argues that the level of child support provided for by a separation agreement is too high. Recently, courts in California ruled that a separation agreement's provision stating that there shall be no downward modification of child support was not enforceable and did not usurp the court's statutory power to modify child support. However, in Michigan, a court reached a different conclusion, ruling that ruling that a man who agreed to give his ex-wife 25% of his yearly bonuses as child support, in addition to monthly support payments, was bound by the terms of his agreement.In summary, a do it yourself separation agreement or property settlement is usually feasible and, quite often, financially advantageous. However, the parties should enter into the process with open lines of communication, full disclosure, and should consider using a property settlement agreement form or template for guidance. State-specific separation agreement forms and property settlement templates are available online.
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