October 25, 2017

What is a Separation Agreement?

A separation agreement is a great mechanism in any divorce case. Not only does it outline the rules of the divorce, it means you and your former partner came to an agreement about the rules. Normally, if a Separation Agreement is made, that means parties stay out of Court. A Separation Agreement is a contract the parties create together. What goes in a Separation Agreement you ask? Let me tell you. Separation Agreements, or at least good Separation Agreements, should handle all the major aspects of a divorce case: Property division, debt division, and spousal maintenance. Although that seems very broad, there are a lot of details involved with each of those sections.

Property division involves a lot of different aspects. People don’t realize when they are dividing up their marital estate how much actually is included within. Items include the following:

Personal Property

In my experience, the Court does not always like to deal with personal property disputes. There is a famous divorce case where the parties took their entire Beanie Baby collection into the courtroom and had the Judge award each single Beanie Baby. Judges definitely like to avoid situations like that. Luckily, in a Separation Agreement you may be as detailed or vague as you would like when it comes to personal property. Sometimes people are particular about what property they would like to retain, such as Elvis memorabilia, but other items that are more obvious, like personal clothing, do not need to be listed.

Real Property

If you and your partner own real property, this is definitely an item that should be included in a Separation Agreement. There are many ways to handle real property, but if you come up with a solution, be sure to detail the solution. It is important to outline the details such as whether or not it will be sold, how the equity will be divided, or if it should be refinanced in one party’s name only.

Bank Accounts

Bank accounts can either be straightforward or complicated. Some couples have two accounts, savings and checking, while others have numerous accounts. Listing out which account each party receives is imperative. An important reminder is that the bank accounts in a Separation Agreement should be thoroughly disclosed. That being said, all bank accounts in one’s possession should be disclosed.


Vehicles are similar to personal property issues, in the respect that typically each party is awarded the vehicle they primarily drive. However, the big thing with vehicles is that a lot of the time they are not paid off. The party being awarded the vehicle becomes solely responsible for that vehicle, which includes any payment possibly associated with the vehicle.


Retirement is one of the biggest points of contentions when it comes to divorce, and for that reason, it is important to detail in a Separation Agreement. Retirement accounts that have vested and not vested are important to list. In Colorado, as long as the retirement accrued during the marriage, there is some portion of that account that is marital. Not only should a separation agreement include the retirement account information, it should also be specific on the law as to how it should be divided.

Division of Debt

No one wants to walk away from a divorce with a ton of debt. Detailing who gets what debt in incredibly important in order to avoid having a dispute later. Having a dispute about beanie babies is one thing, but fighting over debt is more severe.

Spousal Maintenance

Spousal maintenance is typically one of the bigger issues in a divorce case. Detailing how much spousal maintenance, how it is to be paid, how frequent it should be paid, and duration is absolutely imperative. In fact, a Judge would most likely require these details in a separation agreement.

Once a Separation Agreement is finalized, it is filed with the Court with a request that the Court adopts it as an Order of the Court. If the Court finds it unconscionable, in other words unfair, the Court will not adopt the Separation Agreement. The Separation Agreement then become the controlling document. If disputes occur after a Divorce Decree is entered, parties have a mechanism to fall back on.

Christopher Nicolaysen is a Family law Attorney who practices in Colorado Springs, CO. He graduated from Denver Sturm College of Law, and has been practicing law for several years now. Christopher Nicolaysen is passionate about helping you solve your family matters. Learn more about his experience here.

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