What constitutes “separation” in North Carolina?
If you and your spouse are living separate and apart with the intent of at least one of you that the separation be permanent, you are considered to be legally separated in North Carolina. North Carolina defines separate and apart as living in separate residences. If one spouse is sleeping on the couch or living in another part of the house, that does not qualify as living separate and apart. No paperwork or official filings are required to become legally separated in North Carolina.
Why do I need a separation agreement?
A separation agreement is a document often used by a separating (or separated) husband and wife to set out their respective rights and obligations at the end of their marriage and to set out the details of the resolution of the legal issues that often arise when spouses separate. You may not need a separation agreement immediately upon separating, but we have found that the separation process is often less expensive and less combative when clients can reach an agreement before they separate or shortly thereafter.
What issues can be the subject of a separation agreement in North Carolina?
As one of the best means of resolving all issues arising out of your separation, the separation agreement can cover everything from child custody to child support to property distribution and property settlement to spousal support to life insurance and college expenses. Separation agreements can create temporary or permanent resolutions of all or some of the above issues. Partial separation agreements can reserve certain issues for resolution in court or through arbitration. The scope of agreements depends on the willingness of the parties, the creativity of their attorneys, and the needs of the parties.
Is a separation agreement required to get a divorce in North Carolina?
No. A separation agreement in North Carolina is just one manner of resolving the diversion of marital property and support rights and issues relating to children at the end of a marriage. It does not affect the ability to obtain a divorce after the required one-year period of separation. However, any claims relating to property division and alimony are lost if they are not resolved by separation agreement or court order before entry of the divorce judgment, or if there is not a lawsuit pending to resolve those claims filed at the time the divorce is granted. For that reason, many couples will wait until the completion of a separation agreement to file for divorce.
Can I be compelled to sign a separation agreement?
No. Like any contract, a separation agreement must be voluntarily formed and signed indicating that both parties agree upon the terms. Your spouse cannot compel you to enter into an agreement or to agree to certain terms without your voluntary participation. A separation agreement that is signed under duress or without full disclosure of all of the facts, financial or otherwise, may, under some circumstances, not be enforceable later on.
Why do I need a lawyer for a separation agreement?
Your lawyer is your advisor and protector when it comes to negotiating and drafting a separation agreement. In addition to making certain that the legal formalities for the agreement are met, your lawyer can inform you regarding the laws governing the various issues that are covered by your agreement, the potential alternative ways to resolve issues, and the most effective ways to provide security for you and your children. Your lawyer’s experience is an invaluable asset that you can use to evaluate when to settle and when to fight on, and, of course, your lawyer has negotiating skills that have been honed by years of practice. A separation agreement template found on the internet or drafted by the parties is never a good substitute for the advice and expertise of an attorney, and we’ve found that many clients with such agreements end up paying more in legal fees to resolve issues created by such documents.
Can the same attorney represent both of us?
No. Because each party has different interests in the negotiating process and because there are opportunities to advocate for one party even in the drafting process, we believe it is a conflict of interest to represent both parties. Often, however, we will draft an agreement on behalf of one client and present the draft to the other party to review with counsel of his or her own choice.
What formalities are required to create a valid separation agreement?
A valid and legal separation agreement in North Carolina needs to be signed in contemplation of a separation or after the parties have separated. It must be signed and acknowledged by the parties (by a notary). It should be entered into voluntarily and with knowledge of all relevant facts.