If you are considering a legal separation in North Carolina, then you are probably wondering whether or not you need to have a separation agreement drafted. And if you do need such an agreement, do you need a lawyer to draft it for you or are there other ways to negotiate and draft this document without spending thousands and thousands of dollars?
This article is meant to help you answer some of those questions, and many more. If you have additional questions that we haven’t covered here, please feel free to contact our office at (919) 460-5422 to schedule a quick phone conversation with a lawyer.
Is a Separation Agreement required in North Carolina?
No. You do not have to enter into a separation agreement to be legally separated from your spouse. However, you are still married to your spouse for a minimum of a year, even though you may be legally separated from them, we highly recommend separation agreements when there are children, debts, spousal support claims, real estate, or other assets to be divided. A separation agreement will allow you to settle these matters privately in writing and outside of the court system. Oral promises or simple contracts that aren’t notarized are unenforceable under the laws of North Carolina.
What exactly is a Separation Agreement?
A separation agreement is a contract between two spouses in which they resolve the division of property, the payment of financial support, the custody schedule for their kids, and other issues in a written and legally binding contract. A separation agreement is typically signed at the same time the parties separate or just before they separate. In some cases, a separation agreement will be signed many months after the separation has occurred.
Who can prepare a separation agreement?
It is best to have a lawyer of your choosing prepare a separation agreement. To be valid, both you and your spouse must sign this contract in front of a notary. While some lawyers would have you believe that you shouldn’t do this yourself, we are currently working on a software program that will allow you to answer some questions in a simple and easy to use interview format and have a separation agreement that is 95% completed in a matter of minutes. If you are interested in signing up to be a beta-tester of this program, please click here to enter your name and email address.
Can we divide property in a separation agreement?
Absolutely! Although when you divide property in a legal document it is typically considered a “property settlement” as opposed to a separation agreement – many people use these terms interchangeably. Some of the property that you can divide in your agreement include real estate (such as the marital residence and rental properties), other property such as vehicles, businesses, artwork, jewelry, and furniture, and financial assets such as bank accounts, stocks and bonds, pensions and life insurance.
Can I force my spouse to sign a Separation Agreement?
Unfortunately, no. You can’t force your spouse to do anything that he or she doesn’t want to do. You must both sign voluntarily and of your own free will.
Do I need a Separation Agreement to get a divorce?
No. A Separation Agreement is not evidence and will not be used in the divorce proceeding unless you or your spouse decides to incorporate it into the final judgment of divorce, which is not common.
What are the penalties for failing to follow the terms of my Separation Agreement?
It is important to understand that a Separation Agreement is not a court order – you can’t hold someone in contempt of court for failing to follow the terms of the agreement. Rather, you would need to sue your spouse for breach of contract and your remedies would be limited to money damages and specific performance.
My spouse assumed responsibility for our joint credit card debt in the Separation Agreement – does that mean I don’t have to pay these anymore if they stop paying them?
Unfortunately, no. While your spouse would be responsible for these debts pursuant to the Separation Agreement, this agreement is not binding on third parties such as the credit card companies. If your spouse stops paying on these debts, you would be jointly responsible for any joint debts. For these reasons, we recommend ordering a copy of your credit report and making sure your name is removed from any joint debt after the Separation Agreement is signed.
I want my spouse to leave me alone. Will a Separation Agreement keep him or her from harassing me?
Most Separation Agreements have a non-harassment clause contained in them. However, just because something is written in a piece of paper doesn’t mean someone will follow that document. If you are having problems and your spouse will not leave you alone, then the proper remedy would be to file for an injunction or protective order to keep them away from you. Violation of a court order like this is enforceable by law enforcement officers. A Separation Agreement is not.
Does the Court have to follow the custody schedule that is contained in our Separation Agreement?
No. This is a common misconception. Anything related to the children that is included in a Separation Agreement (including child custody and support) can always be modified by a court if they feel that the best interests of your children would be served by changing the terms of your agreement. However, the terms of your Separation Agreement raise a presumption that whatever you agreed to in writing are presumed to be in the best interest of your kids.