China Legal Separation Agreements and Divorce: A Practical Guide

As stipulated by China family law, more specifically, divorce law, you have to undertake a two year legal separation before you are allowed to divorce with your spouse. However, this is one of the five grounds of contested divorce. We will discuss how to draw up a separation agreement and what you should do and avoid doing the period of separation.

Instructions On How To Draft A Separation Agreement in China

1 Discuss your legal separation thoroughly with your spouse. You will want to ensure the legal separation agreement is both fair and thorough. Things that should be discussed include child custody, support, and a visitation schedule (if applicable), spousal maintenance, and who will be paying what monthly bills. Property and asset division should also be discussed, including who will take possession of the marital home and who will be paying the mortgage or rent (or if you will be selling the home, instead); dividing of bank accounts, investments, retirement funds, and other assets; and division of credit card debt, loans, and other marital debt. Keep notes or create an outline during your discussion, which you can refer to later when you write your legal separation agreement.

Tip: A good rule of thumb for financial matters is to agree that whoever was paying the bills and/or debts during the marriage should continue paying after the legal separation.

2 Draft a new typewritten document. Title the document "Legal Separation Agreement." Below the title, state your full name and that of your spouse''s. Indicate that this is a legal separation agreement between you and your spouse using language similar to, "(Your full name), husband/wife, and (your spouse''s full name), husband/wife, do hereby declare themselves separated for any and all actual and legal purposes. Both parties agree to the follow as per the terms of the legal separation:"

3 Create a section underneath the beginning of your legal separation, titled "Marriage and Separation." In a new paragraph, include the pertinent details of your marriage, including the date of your wedding and when and where you were married. Underneath this, start another paragraph and include the details of your actual separation. If you have already separated, state the date you first separated and the address of the current residence for each spouse. If you have not already separated, state the date of the legal separation agreement as the date that you first separated.

4 Create a second section underneath the first, titled "Child Custody and Support." If you and your spouse have no children, simply state "There were no children bore to (your full name) and (your spouse''s full name) before, during, or after the marriage." Otherwise, list the full legal names of each child, along with the age, date of birth, and Social Security number for each child. Separate minor child from adult children in two different sections. Below this, state who will be taking physical custody of the minor children. Then, include a visitation schedule underneath (or create another document with the visitation schedule and refer to it within your legal separation agreement). If neither parent is taking primary custody and you instead prefer an open custody/visitation agreement, state this instead.

5 Start a new paragraph under the same section for child support. Detail which parent will be paying child support for which children, how much support will be paid, and when the support will be paid. Child support is most often paid on a weekly or biweekly schedule, and usually coincides with the supporting parent''s dates of pay; keep this in mind when determining your child support schedule.

6 Create a new section, titled "Property and Asset Division." In a new paragraph, detail which spouse will be taking possession of which assets. Start with the marital home (or, if you are selling the marital home, explain how the profits will be divided) and other large property like vehicles, vacation and rental properties, et cetera. Then, move on to joint checking and savings accounts, investments, retirement funds, and trusts. After detailing your assets in your legal separation agreement, you will then need to divide your personal property. Clothing, shoes, jewelry, and other personal belongings should go to the individual to whom they belong, regardless of who purchased them. Furniture, dishes, silverware, crystal and electronics should be divided equally; if one spouse gets the flat screen television, for example, the other spouse should get the stereo system.

Tip: Writing all of this down in your legal separation agreement will help curtail arguments later on.

7 Create a new section titled "Debt Division." In a new paragraph, list all of the debt accumulated during the marriage. Do not include debts incurred prior to or after the marriage, debts in just your name, or debts in just your spouse''s name (unless the debt was actually incurred by both of you and/or was for both of your benefit). Outline who will be responsible for what debts. The general rule of thumb is that whoever paid the debt during the marriage should continue paying after the separation.

8 Print your legal separation document and have it notarized. Any notary public can do this for you for a small fee. Do not sign the legal separation agreement until you are in the presence of the notary, as she must witness your signatures. Both you and your spouse must be present and must sign the document at the same time.

9 Copy the signed, notarized legal separation document and provide a copy to your spouse. The legal separation agreement will be effective immediately after signing, and both you and your spouse will be bound to the terms within the agreement.

What You Should Know During Separation In China

As with divorce, a legal separation is about ending one life and starting another, getting a new center of balance and making it work spiritually, emotionally and practically.

Whether your legal separation leads to divorce or reconciliation you want to behave during the separation in a way that means getting the most out of what you are trying to do. A legal separation gives you the space you need to solve problems, come to terms with your emotions and start over, either in your marriage or alone. How you behave during a legal separation will determine how successful you are in whatever your motives for separating. Below is a list of behaviors that will either work in your favor or work against you:

Behaviors That Work Against You:

●Don’t engage in behaviors that will be hurtful to your spouse or your children. For example, don’t defame your spouse by discussing personal issues with friends and family. Whatever the problems in your marriage it took two to cause them. Use your separation as a time to reflect on your part in the problems and not as a time to point fingers and blame. If you have children and are living apart from them put extra effort into seeing them regular and considering their emotional needs. We all end up paying for behaviors that hurt others so, be careful because your bad behavior will come back at you.

●Think about the legal and emotional ramifications of having sex with your spouse. If you live in a state that requires a legal separation for a certain period of time before you can file for divorce, having sex with your spouse can set you back legally. It will cause you to have to start the separation period over from the beginning. In addition, if you are still emotionally attached to your spouse sex can give you false hope of reconciliation.

●A legal separation is not a divorce. It is not an opportunity to go out and become involved in a new relationship. It is the opportunity to heal, reflect on your part in the marital problems and to learn how to live as a single parent if you have children. Before becoming involved in a new relationship you should also consider what it will mean legally during divorce negotiations.

Behaviors That Work In Your Favor:

●Keep the lines of communication with your spouse open. If you are angry deal with your anger in a way that will enable you to remain civil and respectful toward your spouse. Being able to communicate and treat each other with respect will mean less stress for you, your spouse and your children.

●If you have children set up a visitation schedule that allows them time with each parent. A separation and divorce should disrupt your child’s life as little as possible. Talk to your child daily, remain involved in school and other activities, keep a regular visitation schedule and make your children your main priority. If you are suffering emotionally don’t allow it to bleed over into your relationship with your children.

●Follow through with any promises made in your legal separation agreement. You are legally and morally obligated to follow the separation agreement. Not doing so will mean ending up in court and possibly alienating your children due to your bad behavior. For example, if you agree to help pay expenses of a child who is in the school band but don’t follow through when the time comes causing that child to have to drop out of band don’t be surprised when your child become angry with you. Follow through with any support obligations, visitation schedules and other issues stated in your agreement. If you don’t you will find yourself in a one down position if you go to divorce court. A judge will not look kindly upon someone who did not follow through with a legal separation agreement.

Please note that two-year separation is merely one of the five grounds of contested divorce. You are allowed to divorce as a result of consent or other reasons.