Legally Binding Separation Agreements
If you and your partner concur on your separation terms and wish to bypass court proceedings, consider drafting a Separation Agreement. Establishing such an agreement without court intervention is typically more affordable and less stressful.
Should there be disagreements over the separation terms, a court application for a decree of judicial separation might be necessary. In this scenario, a court will determine the allocation of assets and duties, enabling couples to resolve financial matters faster than it takes with a decree of divorce.
Where possible, it is always preferable to avoid potentially costly litigation. If you are struggling to reach an agreement with your spouse, McCarthy + Co’s family law team can provide expert guidance over the terms of your separation, helping you to draw up an agreement without the need for court intervention.
Our team can help you assess and include the following in your agreement:
- Child Custody and Access – Determining whether one spouse will have exclusive custody or if both will share joint custody. If custody is sole, the agreement will detail the visiting rights of the non-custodial parent.
- Child Maintenance – When a child predominantly resides with one parent, outlining the support payments the other parent is obliged to provide, including specifics on amounts and schedules.
- Spousal Support – Clearly stating if either party will be entitled to spousal support after separation. If applicable, specifying the payment amount and frequency.
- Family Home Possession – Documenting what will happen to the family home. This might involve outlining the transfer of the home’s title to one spouse, selling the property and splitting the revenue, or continuing cohabitating post-separation.
- Asset Allocation – Cataloguing individual and shared assets. Specifying which assets each party will keep and which communal assets will be liquidated and the profits shared.
- Income Declaration – Documenting both parties’ sources of income, whether from employment or other avenues.
- Debt Responsibility – Enumerating the debts and deciding who will be accountable for each, covering obligations like credit card balances, car financing, and personal loans.
- Additional Provisions – Determining if parties will forgo claims on each other’s future assets or estates. Also, incorporating a non-interference clause, ensuring that neither spouse will disturb, intimidate, or inconvenience the other, be it at home, work, or any other venue.
Agreeing to the terms of your separation, so you can both move forward with your lives, may not always be plain sailing. If you are struggling to reach an agreement, and you want to avoid court proceedings, the McCarthy + Co team can assist you. Complete our quick consultation form today and a member of our family law department will get back to you.
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Frequently Asked Questions
Questions we are often asked in relation to divorce & separation.
What is a Separation Agreement?
A Separation Agreement is a legally enforceable contract that spouses utilise to distribute assets and define responsibilities after the end of their marriage. For this agreement to be valid, both parties must mutually consent to its terms. Formulating a Separation Agreement serves as an alternative to pursuing a judicial separation, which necessitates court involvement. Separation Agreements detail how assets, liabilities, and childcare are managed during the separation period. A legally binding Separation Agreement cements the separation terms, ensuring the protection of individual rights and interests.
How are Separation Agreements legally enforced?
Separation Agreements are legally enforceable because they are structured as contracts between consenting adults who agree upon terms regarding assets, debts, child custody, and other related matters. When both parties sign the agreement, they are indicating their willingness to abide by its stipulations. If one party breaches the terms, the other can take legal action to enforce the agreement. Courts generally uphold and enforce these agreements if they are deemed fair, entered voluntarily, and both parties understood the terms they agreed upon. It’s advisable for both parties to seek legal counsel to avoid the possibility of an agreement being deemed invalid by a court.
Can spouses continue to live in the same house after separation?
Yes, spouses can separate and remain under one roof. The “living apart" aspect of the agreement refers to couples who cohabit but don't maintain an intimate, committed relationship. They may share a home due to reasons such as finding alternative housing, financial limitations, or ensuring stability for their children. When drafting a Separation Agreement, both couples can list the same address. If disputes arise, the agreement and an affidavit, which is a sworn statement verifying certain facts, can confirm their legitimate in-home separation. The affidavit explains the rationale for such a choice, as well as aspects of their physical and financial separation like distinct sleeping areas, meal routines, split assets, and separate bank accounts.
Do I need a lawyer to get separated from my spouse?
No, you don't necessarily need a lawyer to separate from your spouse. Many couples choose to draft a Separation Agreement on their own or with mediation assistance. However, consulting a lawyer can provide clarity on legal rights and obligations, ensuring the agreement is fair and legally enforceable. It's especially advisable to seek legal counsel if there are complex assets, debts, or child custody considerations.
Clíodhna O’Regan leads the family law department at McCarthy + Co. Clíodhna’s educational background includes studying law and European studies at the University of Limerick, even completing a semester in Madrid where she navigated the complexities of law in Spanish.
Clíodhna can be contacted via email at: firstname.lastname@example.org
About McCarthy + Co
McCarthy + Co. are a team of solicitors with more than 30 years of experience in providing legal advice, guidance and assistance to clients across Ireland.
We are a family-run business with offices in Dublin and Cork, but we have dealt with clients everywhere from Galway and Limerick to Waterford. We are honest, plain-speaking and thorough – we will work alongside you to achieve the best possible outcome for your case.
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John McCarthy is a seasoned solicitor with almost 20 years of experience, specialises in personal injury and medical negligence claims, focusing particularly on high-value compensation cases. His extensive litigation experience spans Circuit Court, High Court and Supreme Court levels.
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