Can I Get A Divorce Using A Separation Agreement?

Sydney Mitchell:

Hi. My name is Sydney Mitchell.

Matthew Brickman:

Hi, I’m Matthew Brickman, Florida Supreme court mediator. Welcome to the Mediate This! Podcast where we discuss everything mediation and conflict resolution.

So we had a listener write in and ask, can I get a divorce using a separation agreement? So before I answer this one question, as Sydney and I have said over and over again in the Q&A’s that we do here on the podcast, it is important to understand the laws of the state that you were in. So to answer this question in the state of Florida, not to my knowledge. And the reason why I say this is because we have to look at, well, what is a separation agreement? So a separation agreement by definition, is a formal acknowledgement that two spouses have agreed to separate but remain legally married. So it’s a document listing the terms of the separation and the responsibilities of each spouse during their time apart. So in the state of Florida, and I will talk about the state of Florida because that’s where I live and that’s where I practice most, uh, of the time.

In the state of Florida, you are either married or you are not married. There is no legal separation. So there would be no separation agreement because the law does not acknowledge that. Now you may live in a state and whoever wrote this may live in a state where there is a separation, a legal separation. And so at that point, um, can you get a divorce using a separation agreement? I would think no, because of what a separation agreement is. It’s a document listing the terms of the separation. It is not a document listing the terms of the divorce, it’s one that lists the terms of the separation and the responsibilities of each spouse during their time apart. So it doesn’t talk about, it doesn’t say anything about a divorce, it’s about the actual separation itself. Now, what I have seen in the state of Florida is I have seen what is referred to as a postnuptial agreement.

So I think Sydney and I have probably talked about prenuptial agreements, and I’m sure a lot of people know what a prenuptial agreement is. A lot of people have heard that term. And that is an agreement that two people enter into prior to getting married, that then lists the terms, um, of what happens in the event that they get divorced and what are the responsibilities and the rights and the entitlements. And so that’s a prenuptial agreement. It’s prior to the nuptials being entered into, but then there’s a post-nuptial agreement that can be done any time in between the marriage and somebody filing for divorce. And so what I have seen, I’ve seen were people during the course of a marriage or, um, I guess where it’s been most common is I have worked with therapists who have a husband and a wife in therapy working on their marriage.

And so what the therapist does is the therapist has said, Hey, while you’re working on the marriage, why don’t you go see Matthew and create an agreement that will help the two of you with, you know, list out in a contract the terms that you guys want to have so that this doesn’t fall apart even more while we’re working on putting it back together. So with, then let me just explain the different levels of relationship and why somebody may have a post-nuptial agreement or even a separation agreement. So we’ve got to look at the different, uh, stages of a relationship. The first stage of a relationship of any relationship is acquaintance. That’s where two people meet. They want a date, they want to hang out. It’s the acquaintance level. Now, at that level, there are no rules, accountability, responsibility or consequence. Everybody just makes up their own of who’s gonna pick up who or are they gonna meet.

And then are they gonna split the bill? Is one person gonna pay? Like, how is that all being done? The second level of relationship is intimacy. So fine, either they, uh, get married or they start dating exclusively or seriously. Now, in that level, there still are is no, um, rights entitlements. There’s no accountability, no responsibility, no consequence. And so it’s still whatever people make within the rules or the confines of their relationship. Um, and so now if people do get married, then there will be rights and entitlements, you know, for a, uh, when, when a divorce happens. And that is the third level. The third level is loss of intimacy. Vance, usually where I see everybody because I’m a mediator and so I’m coming in when they’re, is a loss of a relationship. Now, in that third level, just like acquaintance and intimacy, there’s still no rules.

Accountability, responsibility and consequence. People make up their own inside of their relationship. The problem though is when somebody says to somebody in the relationship, Hey, this isn’t working anymore. Well, the problem there is there are no rules, accountability, responsibility and consequence. That could be a dangerous place to live. Cuz people, people have done some pretty crazy, pretty creative things to other people, but, you know, dangerous emotionally, psychologically, sometimes physically, monetarily. Um, and so to have, um, an agreement where there are finally rules, accountability, responsibility and consequence, that’s a healthy place to transition to. And that is where I come into play as a mediator because for the first time ever in somebody’s relationship, they will then be transitioned out of those first three, which are all emotional. So acquaintance intimacy and loss of intimacy, those are all an emotional relationship to come to mediation and create an agreement, whether that’s a separation agreement, a divorce agreement, mediation agreement, a post-nuptial agreement.

When you get that document for the very first time in the relationship, there will be rules, accountability, responsibility, and consequence. And that can be a very healthy place to live. So again, in a separation agreement that lists the terms of the separation and the responsibilities of each spouse during their time apart. So if we talk separation agreement and post-nuptial agreement, because in my mind they can be the the same. It just depends on the rules of your state, and it’s important to know the rules of your state. But for example, I had, uh, a therapist that sent me a husband and a wife. And so what we did was we actually talked about, okay, who’s going to be responsible for the kids on what day? And so even though they were still living together, what we did is we said, okay, who’s picking the kids up from school?

Who’s doing dinner, who’s doing baths? And so what we did, uh, for this particular couple was even though they were still living together, we did it like a time sharing schedule where on Mondays and Tuesdays, dad. Um, and that, and, and it’s because this particular couple chose, uh, their particular days, it just worked better for dad. Um, so Monday and Tuesday, dad would be responsible to pick up the kids from school. He was responsible to help ’em with their homework. He was responsible to cook dinner, he was responsible to entertain them, get them ready for bed. Now mom was there, she was in the home in the evening, they had dinner together, but it was dad’s responsibility to take on that task. And then on Wednesday and Thursday it was mom’s responsibility. Um, now the weekends, this particular couple decided that on the weekends they would sort of just figure out, you know, on a case by case basis because the kids were an extracurricular activities and you know, they, they both went.

And so we didn’t get into building it like, you know, an actual post-nuptial agreement or separation agreement where we defined all the time sharing, but we did for these particular Monday through Thursdays. So that number one, both of them got a flavor of, well, what’s it gonna look like in the real world if you don’t pay attention to your marriage, if you actually get divorced? What would the time sharing schedule actually look and feel like? And this also gave both of them a glimpse to, you know, for example, the husband worked outside of the home full-time. The mom had a part-time job, but you know what, dad actually got a glimpse and a taste of what is it like to have to leave work to go pick up the kids and what is it like to have to cook dinner for the kids and how do you balance home life and work life at the same time?

Um, and so that gives him a glimpse going, if I don’t pay attention to my marriage, this is what life could look like, huh. And so, um, you know, then when it came to bills and expenses, who was paying what? Um, you know, one of their biggest problems, like most couples is they were arguing over finances. Who’s paying? Who’s working, who’s contributing? And so what we did was we created then a, an agreement where they were then going to divide everything on a pro rata basis. So what does that mean? Pro rata? That means that, um, they divided it on the percentages based on their incomes that they brought into the family. So unless they both made, let’s just say $50,000 each per year, under that scenario, they would contribute equally 50 50. But if dad brought in two thirds of the money and mom brought in one third of the money, well then that’s how they would contribute.

They would contribute to the bills and expenses based on what they were bringing in. Um, and so this particular couple then decided that they would divide, divide, um, certain bills. And so we talked about it, you know, whether, whether that was the mortgage, whether that was food, whether that was the kids’ extracurricular. And so we got creative so that the two of them could create an agreement. Now, when they were done, they actually signed their agreement. It was then legal and binding under contract law. Did they file it with the court? No, they did not file it with the court. Did they have to go in front of a judge? No, they did not have to go in front of the judge. This was just a contract for the two of them. Now, in their particular agreement, they actually put in there that in the event that they do end up going through with a divorce, they agree to adopt the terms of this agreement and incorporate that into a final agreement.

Now, why is that important? That will help them keep the cost down and not have to argue about other things. All of these things that we negotiated now in a final divorce. So if they do end up going through a divorce, we don’t have to figure out the responsibility during the school year. We’ve already got that figured out. Dad’s got Mondays and Tuesdays, mom’s got Wednesdays and Thursdays. At that point, all we’re doing is then saying, okay, we’re gonna alternate weekends, um, for holidays. Fine, that, that they, they said that they would never argue about that because for example, you know, for Christmas the father always did, uh, Christmas and Christmas Eve. The mother, uh, being with her culture New Year’s was always very, very important. Not so much Christmas. And so, you know, um, neither of them cared about Thanksgiving itself. And so what we were looking at doing maybe on a long term, uh, that we had discussed in this particular mediation was simply following the children’s academic calendar and dividing up their breaks, not based on a religious preference or a particular holiday, but basically just dividing equally when the children are outta school, which makes it very, very simple.

Um, they had already then agreed to how they were going to divide bills and expenses, um, until they were divorced. Now, granted, once they actually get divorced, they’re not dividing bills in expenses. Two third, one third, um, were doing equitable distribution, but they also got to see, well, what would child support look like? Um, is there any alimony? Is this an alimony case? If so, what would it maybe look like? And so they got a glimpse of what could potentially life look like if we do not pay attention? Um, and so that’s where maybe a separation agreement is handy. If you live in a state that does, um, recognize a legal separation, maybe that can actually be incorporated into a final divorce decree. If you put it in there, um, will it automatically be incorporated? Probably not because if you live in a state where there is a legal separation, um, I don’t know, you would have to check the laws of your statement.

I don’t know if just by default your separation agreement would be incorporated into it or if that was its own separate document and now you’ll have to create your actual divorce decree or your mediation agreement if you’re moving forward. Um, and so that, that’s up to you whether or not you want to build that into your separation agreement or your postnuptial agreement that in the event there’s a divorce, the terms of this agreement will be incorporated. That definitely will help you not argue about those things later. Um, and so hopefully that explains to this particular listener that wrote in and said, can I get a divorce used in a separation agreement? Hopefully that answers your question, um, to whether or not you can use that as a divorce agreement. You, I believe you can probably incorporate terms if you put that in there. But separation agreement, if you live in a state that has separation agreements or a legal separation, probably a separation agreement is just that, uh, just like a post-nuptial agreement is just that. Um, it all depends on what is negotiated. So make sure that you’re very clear with your communication with your mediator, that’s helping you create either your postnuptial agreement, um, or your separation agreement so that, um, you can do more preventative maintenance and not have to do damage control at a later point in time.

Matthew Brickman:
Occasionally Sydney and I will be releasing Q & A bonus episodes where we will answer questions and give you a personal shout out.

Sydney Mitchell:
If you have a comment or question regarding anything that we discuss, email us at info@ichatmediation.com that’s info@ichatmediation.com and stay tuned to hear your shout out and have your question answered here on the show.

Matthew Brickman:

For more information about my services or to schedule your mediation with me, either in person or using my iChatMediation Virtual Platform built by Cisco Communications. Visit me online at www.iMediateInc.com. Call me at 561-262-9121, Toll-Free at 877-822-1479 or email me at MBrickman@iChatMediation.com.