9094 / What are the requirements for drafting a valid separation agreement?

A separation agreement (sometimes referred to as a property settlement agreement) is an agreement between two married spouses who have decided to separate, and may be especially appropriate in cases where the spouses share custody of a child. Most state statutes require that a separation agreement be in writing,¹ although this requirement is not as strictly construed as in the case of prenuptial ( Q 9092 to Q 9093) or postnuptial ( Q 9095 to Q 9096) agreements (for example, some New York courts permit oral separation agreements to be made while the parties are in court).²

---

Planning Point: These rules vary based on state law, so the relevant state law should be carefully examined in determining whether an oral separation agreement will be enforceable.

---

Many of the same fairness issues that apply in determining the validity of a prenuptial agreement also apply in the case of separation agreements. Therefore, the separation agreement generally must be entered into voluntarily³ (without the presence of fraud; general contract principles apply in determining whether duress or undue influence prevent a finding of voluntariness) and many states require that full financial disclosures be made between the parties.⁴

Some states require that the terms of the agreement be substantively “fair” in all cases,⁵ while other states only impose such a substantive fairness requirement if the parties have not satisfied otherwise applicable financial disclosure requirements.⁶

A separation agreement that purports to waive child support obligations may be challenged on the grounds that it is against public policy and is thus unenforceable.⁷