North Carolina Separation Agreements
In order to move on peacefully from a marriage that is ending, a couple may wish to enter into a separation agreement. These are also called “post-marital agreements.” These agreements are not a requirement for a separation, but they may provide a way to make splitting up less problematic. A couple may be considered “separated” simply by living in separate homes with the intent to remain separated.
However, a separation agreement is a way to privately and efficiently resolve divorce-related issues such as alimony, asset division, child custody and child support. They are often reached through the use of a mediator. Reaching an agreement instead of going to court to resolve these issues can, in that sense, result in significantly lower expenses and help to lessen the stress of a divorce.
A separation agreement can also protect your rights today and in the future. Once the separation agreement is signed by both parties and notarized, it becomes a binding contract that can be enforced in court. If the agreement is entered into a consent order as part of your divorce, a court can use its contempt powers to enforce the agreement’s terms.
What Goes Into a North Carolina Separation Agreement?
The terms of a separation agreement depend entirely on the parties entering into it. It can be as sparse or as detailed as the parties wish. Each divorcing couple will have different, unique issues they want to resolve in the agreement, so no two separation agreements are the same. However, the following terms tend to be commonly included:
- Marital residence – If the parties jointly owned the marital home or other real estate, ownership of that property will need to be addressed. The parties may choose to sell it, or one party may agree to relinquish their ownership interest in exchange for money or other property from the other spouse.
- Personal property division – Instead of dividing assets through a legal action called “equitable distribution” of property, the parties can instead spell out in the separation agreement how they will divide their personal property. This can include the division of tangible property (furniture, home entertainment equipment, cars, etc.) as well as intangible property (stocks, bonds, mutual funds, IRAs, savings accounts, etc.). The separation agreement should make clear that, by entering into this contract, the parties waive rights to equitable distribution.
- Future debts and liabilities – It is important to express in a separation agreement that neither party will be liable for any future debts incurred by the other. It should also be stated that both parties are prohibited from using the other party’s name to secure assets.
- Alimony – The separation agreement can also establish an alimony arrangement. This agreement could call for alimony to be paid in a lump sum or on a continued basis. The agreement should establish the amount, the date it must be paid and the interest that will be charged for failure to make a timely payment. It should also state the date on which alimony payments will end.
- Child custody and child support – If the parties have children, they may use the separation agreement to establish a plan for child custody and child support. If a court finds that these terms do not serve the child’s best interest, then they can be modified. However, unless there is proof to the contrary, North Carolina law presumes that the terms of the agreement do, in fact, serve the child’s best interest. These terms can establish who has physical and legal custody of the child, visitation rights and schedules and even state with whom the child will spend vacations and holidays. The agreement can also set forth who will pay for the child’s education and the amount of child support (including when it is paid and penalties for failing to make timely payments).
In addition to these terms, the separation agreement should also establish the effect that reconciliation will have on the contract, which state’s law will govern the contract (i.e., North Carolina law) and the process that must be followed if a party seeks to amend or rescind the agreement.
Why Should I Enter a Separation Agreement?
Although they may not be the right option for everyone, a separation agreement can have many significant advantages for divorcing couples if they are able to reach a mutually acceptable agreement about the issues related to the divorce.
Control is perhaps the greatest advantage of using a separation agreement to resolve matters such as child custody, alimony and property distribution. In North Carolina, a separation agreement is a private contract between the divorcing spouses. The divorcing spouses – with the help of their attorneys – negotiate and decide the terms of the divorce on their own. If there is no separation agreement, a judge will decide the outcome.
When a divorcing couple is able to reach a separation agreement that is acceptable to both parties, the court has no say on the most important decisions about the family’s future. In fact, the court does not even have to approve the separation agreement. The only role for the court will be to enter a final divorce order.
The separation agreement is treated as a contract and can be enforced by any court in North Carolina through the court’s contempt powers. The court does retain some discretion to modify the separation agreement’s terms regarding child custody if the court finds that they are not in the best interests of the child. However, under North Carolina law, the terms are presumed to be fair and reasonable unless shown to be otherwise.
Because the divorcing couple determines the terms of their separation agreement – not the court – there is an opportunity to come up with creative solutions to problems that address the spouses’ unique situation. The result can be a custom divorce agreement that works for you and your children, instead of a decision made by a judge who doesn’t really understand your individual circumstances.
Avoiding litigation and the stress that comes with airing your family’s private concerns in court is another major advantage of negotiating a separation agreement. Going before a judge to discuss the intimate details of your family life can make a difficult situation even more unpleasant. Litigation can also be hard on your children, even if they are never called to testify in court.
It’s important to remember that you do not have to work out the issues on your own. You should get help from a qualified divorce attorney, and you may also work with a family law mediator who can help you and your spouse come to an acceptable resolution.
Are you interested in learning more about separation agreements and whether it might be the right option for your family? Raleigh divorce attorney Charles R. Ullman is ready to discuss your situation and answer all your questions. Contact him now to find out your options.