A “Separation Agreement and Property Settlement” is the term most often used to describe a contract between a husband and wife that resolves all issues arising out of the parties’ marriage, with the exception of the divorce itself. The parties can reach agreements on matters such as the division of their marital assets and debts, custody and support of their minor children, spousal support and waiver of rights in the other spouse’s estate. There are many advantages to resolving family law issues in a Separation Agreement, including privacy, control, and time and expense.
A Separation Agreement is a private contract between the parties and it will not be submitted to the Court for incorporation into a court order unless the parties expressly agree. This is especially important for families who operate their own companies and do not want competitors to learn critical information about their businesses or for families who have large estates or massive debt and want to keep their finances private.
Also, since a Separation Agreement is an “agreement” between the parties, the parties (rather than a judge) have control over how their assets will be divided, the term and amount of spousal support obligations and the custody provisions concerning their children. The parties can craft a Separation Agreement that meets their family’s particular needs. For example, the parties may construct what most judges would consider a unique custody and visitation schedule that serves their children’s particular needs or the parties may divide assets in a novel way in order to meet certain family financial obligations.
Negotiating a Separation Agreement is considerably less expensive and time consuming than litigating all family issues in a public forum, such as a courtroom. Although your lawyer will zealously advocate your position in negotiating a Separation Agreement, the process can often be less adversarial and less stressful than litigation. At Ward Family Law Group, our attorneys in Cary, North Carolina are board certified family law specialists who are experienced in negotiating Separation Agreements.
Frequently asked questions
Now that my spouse and I have signed the Separation Agreement, do I need a new Will?
North Carolina’s Probate Code invalidates certain portions of Wills which are made prior to a divorce. Following the signing of a separation agreement or divorce, you will probably need a new Will. You may also want to revise your Will prior to your absolute divorce.
My wife and I have reached an agreement on everything and now we just need a lawyer to draft the document. Can one lawyer represent both of us?
No. Since Husband and wife are technically “opposing” parties in the agreement, it would be a conflict of interest for one attorney to represent both parties. We will be happy to meet with one spouse and prepare a Separation Agreement on behalf of that one spouse. The other spouse should retain independent counsel of her choosing to review the agreement in order to make sure that her interests are protected, as we cannot provide legal advice to the other spouse.
Is a court bound by what we put in the Separation Agreement about our children?
No. The terms you include for child support, custody and visitation can always be modified by the court. However, in the absence of proof to the contrary there is a presumption that the terms concerning the children in your agreement are fair, reasonable and necessary for the best interest and welfare of the children.
What if one party doesn’t comply with the Separation Agreement, can a judge hold the non-complying party in contempt?
No. Contempt of court is the willful failure to obey a court order. A Separation Agreement is not a court order; it is a contract and is enforceable just like any other contract. If a party violates or “breaches” a provision of the Separation Agreement, the other party may sue for breach of contract and a judge may order the other party to comply with the Agreement. Additionally, if there is an attorney’s fees provision in your Separation Agreement, the judge may make the breaching party pay the non-breaching party’s attorney’s fees.
Will a Separation Agreement free me from paying joint debts obligations?
No. A Separation Agreement is a contract between spouses. Husband and wife are the only parties to the contract, and thus, they are the only parties bound to follow the Agreement. Third parties, such as banks and credit card companies, are not parties to the contract. Therefore, if Husband agrees to assume responsibility for the $10,000 joint Visa debt and he does not pay, then Visa can still come after Wife for repayment of the joint debt. In that case, Wife could sue Husband for breach of the Separation Agreement. However, for various reasons, including the risk that Husband may file bankruptcy, it is important that you have frank and open discussions with your attorney about all joint debt obligations and ways to satisfy those joint debt obligations as soon as possible as the Separation Agreement may not provide your with guaranteed protection in the event Husband does not pay the joint debt as required under the parties’ contract.
My spouse is being totally unreasonable and uncooperative. Can I force my spouse to sign the Separation Agreement?
No. The Separation Agreement is an “agreement” and both parties have to sign the agreement voluntarily, without compulsion, duress or undue influence from the other spouse. If your spouse is being unreasonable and uncooperative perhaps mediation or some other dispute resolution technique can be helpful in resolving the dispute. If you reach an agreement with your spouse in mediation, you can still reduce your agreement to a Separation Agreement.
Can I simply go on the Internet and print out a form Separation Agreement?
Separation Agreements are tailored to the individual case, and one size doesn’t fit all. Your attorney should advise you on what terms to include, how to divide the marital estate and address other complicated legal issues. Additionally, in this “form” agreement you could be waiving important marital rights. For example, one unlucky lady we met had pulled an Agreement from the Internet and simply substituted her name and her husband’s name in the blanks and signed it. It was only later when she came to our office that she learned that she had waived her right to her husband’s pension, which was worth a substantial amount of money. In her case, she would have benefited greatly financially from hiring a family law attorney to assist her in preparing the Separation Agreement. By relying on Internet forms, you may end up being “penny wise, but pound foolish.”
What kinds of provisions are included in a Separation Agreement?
Your Separation Agreement will be tailored to your family’s specific circumstances. However, there are certain clauses which are usually standard in Separation Agreements, they may include the right for each spouse to live separate and apart from the other spouse; mutual non-harassment or non-molestation provisions (i.e., not visiting the other spouse’s residence without expressed permission or telephoning the other spouse); no amendments or changes to the Agreement unless in writing and acknowledged by the parties; mutual waiver and release of all claims and marital rights, etc. Additionally, the Separation Agreement may address how marital assets and debts will be divided between the parties, provide for spousal support, health insurance, life insurance, how tax returns will be filed and how other tax issues will be handled, custody, child support, college education expenses for the children, etc. There is no such thing as a form Separation Agreement and your Agreement will depend on your particular case.
Do I have to have a Separation Agreement to be “legally separated”?
North Carolina does not require a couple who is separating from each other to sign a Separation Agreement. However, there are a number of rights that arise out of a marital relationship that continue beyond the date of separation. It is a wise idea if there are marital debts (joint or individual debts), minor children, support claims or property involved for parties to consider resolving their issues in a Separation Agreement. “Verbal agreements” between the parties are not enforceable.
A friend of mine used a divorce planner when she and her husband divorced, do I need one?
A divorce planner can be very helpful in determining cash flow needs, financial planning as well as dividing up the marital estate. Talk with your attorney to determine if you need to consult with a divorce planner in your case.
Can I start dating after my husband and I separate from each other?
Although post-separation adultery may not be a basis for awarding or declining to award alimony, it can be used as corroborating evidence to support an allegation that adultery occurred prior to the separation. In North Carolina, it is possible for a spouse to bring a lawsuit against someone who has alienated the affections of and/or had sexual relations with a spouse’s husband or wife. The adultery cause of action is called criminal conversation. Any extramarital affairs or dating relationships on the part of either party should be brought to the attention of your attorney so that he or she may advise you of the law in this area.