If I Can Just Get My Spouse to Sign a Separation Agreement Is It Binding?

This is a common question people might ask when going through a divorce. Generally, the question is posed to our attorneys by the person in the superior financial position, meaning with more to lose if the legal norms were applied or if the matter were to proceed to a final orders hearing in front of a judge or magistrate. The questions is not inappropriate in that it is both common sense and human nature for people to strive for both quick and advantageous resolutions to their Denver divorce cases. However, there are various legal technicalities and pitfalls which must be complied with before an agreement is safe in terms of procedural and substantive compliance.

Firstly, “separation agreement” is the legal term of art for the final agreement in a divorce case which sets forth the terms for division of marital property, maintenance (alimony), division of debt, and other financial issues. Separation agreements often also set forth both parenting time (visitation) and custody provisions. Pursuant to C.R.S. 14-10-112, a separation is generally going to be considered binding, almost likened to a contract, particularly as relates to the division of property and debt, as well as to a waiver of alimony. Courts not only have, but maintain, the discretion to review and weigh in on provisions of a separation agreement tied into child support, spousal support, and child custody issues. They are also charged with assessing whether a property division agreement is fair and equitable to both parties.

In instances in which divorcing spouses rush to enter into a separation agreement, there are certain concepts to keep in mind which must be adhered to if they want their agreement to stand. Again, generally the party with more to lose financially would be wise to do things correctly.

The first significant protocol to be followed is making sure that prior to the signing of the separation agreement, or even tendering it to the other party, full financial disclosures, pursuant to Colorado Rules of Civil Procedure Rule 16.2 (e)(2), have been provided. This includes not only a sworn financial statement, but also recent pay stubs, the last three years of income tax returns (personal and business), and current bank, debt, investment, and retirement account statements. Pursuant to fairly recent case law, the duty to provide these financial disclosures is mandatory and cannot be waived. If disclosures are not provided prior to signing, the other side can raise the issue with the court as a means of getting out of the agreement that might otherwise be binding. As a side note, it should also be noted that disclosures need to be accurate, particularly as to the bigger ticket items. Thus, if someone fails to disclose a bank or investment account, or materially understates the value, they are at risk of the other party reopening the case and unsettling the agreement, so long as such is done within 5 years of the divorce being completed. This can also be done before the decree of dissolution of marriage enters. The best course of action is to follow the rules of disclosure both substantively and from a timing standpoint.

The second area of concern related to making sure your separation agreement is binding ties in the substance of the agreement in terms of whether it is reasonable. Technically, the agreement must not be “unconscionable,” which, in essence, means grossly unfair. Case law supports the notion that spouses have a duty to negotiate fairly with each other and not engage in sharp dealing when settling the financial aspects of their divorce. To give an example, in a marriage in which there is a marital estate of $1,000,000, most courts would find it to be unconscionable if one spouse got $900,000 of the estate and the other gets $100,000. This is not to say that parties cannot enter into agreement which are not equal, or even close to equal as relates to division of marital property. However, when one party gets 90% of the marital estate, without some sort of other offset or logical basis, such an agreement may not survive a subsequent challenge by the other party or the court tied into being conscionable.

Prior to signing off on the decree, judges will go to varying lengths of scrutiny to review parties’ agreements, financial disclosures, etc. When there are two attorney’s involved, a court is less likely to scrutinize to the degree it will when there are one or two unrepresented spouses. Again, challenges to the agreement can be raised by either the court or a party. As such, in practice, it is better to follow the rules and to be able to justify any provisions which deviate too far from the norm. Thus, just rushing to get your spouse to sign a separation agreement as a means of saving both time and money may come to back fire down the road. When it come time to settling your divorce case it is advisable to first consult with a family law attorney.

Client Testimonials
His passion and ferocity kept me going through this long ordeal.
When I first came to Plog & Stein it was simply discuss the renegotiation of child support. Little did I know that within 72 hours I would be retaining Steve Plog for a custody battle. His passion and ferocity kept me going through this long ordeal. I have recommended him to my friends and I would recommend him to anyone with who wants honest and effective representation.
★★★★★
I recommend Sarah and the attorneys at Plog & Stein to anyone that has these types of family issues and need strong, knowledgeable representation.
I am thankful for the job Sarah McCain did for me in my fight with my ex-wife for visitation rights with my daughter. Sarah and the team at Plog & Stein handled my case in an efficient, affordable, and professional manner. Sarah negotiated a new parenting plan as well as acceptable visiting rights and even a favorable modification in my child support. I recommend Sarah and the attorneys at Plog & Stein to anyone that has these types of family issues and need strong, knowledgeable representation.
Tom
★★★★★
At the end of the day he was able to produce a settlement that was fair to both parties.
I highly recommend Stephen Plog for anyone in need of a top notch domestic relations attorney. After a 27 year marriage, Stephen represented me in a complicated and sometimes bitter divorce with many unique challenges. At the end of the day he was able to produce a settlement that was fair to both parties but limited my alimony payments to only 3 years. He is smart, cuts to the chase, knows the court system in the Denver metropolitan area and can be trusted to get his clients the best possible settlement.
Neal
★★★★★
Their service was outstanding, with prompt responses to all of my questions.
Sarah McCain and Plog & Stein were wonderful to me during such a difficult time in my life. Their service was outstanding, with prompt responses to all of my questions and creative ideas throughout the proceedings to help things go smoothly. Sarah's compassion, patience, and expertise were especially invaluable to me. I highly recommend them.
Sandy
★★★★★