Separation Agreements
What is a Separation Agreement?
When a couple – or one of the spouses – decides the marriage is over, it is smart to work out a separation agreement if the parties can agree on the terms.
It can include issues such as child custody and support, division of property and spousal support. The contract can include anything so long as it is not illegal. It can facilitate the eventual divorce proceedings and limit the need for lengthy litigation of divorce issues.
If the couple decides to reconcile before the divorce becomes final, the executed provisions generally stay in effect and the unexecuted provisions are void. However, if desired, a separation agreement can be drafted which provides that all financial provisions in the agreement remain in effect if a reconciliation happens.
Benefits of a Separation Agreement
While separation agreements are not required for a divorce in North Carolina, they are immensely helpful in defining what is expected of each spouse, and what their rights and responsibilities are. They are beneficial in a number of other ways as well.
Cost savings is a big factor in having a separation agreement. It is faster and less expensive to work out the issues of separation privately than to have lawyers litigating them in court and having a judge make the decisions.
Control and privacy are two more positive benefits of working out your own terms of separation. First, you know the situation – including your children, if you have them – far better than a judge. Through a separation agreement, you can determine and control your own unique circumstances to your advantage. Second, separation agreements are civil contracts and do not have to be approved by a judge or filed with the court. This keeps your negotiations and agreements out of the public record and private.
What if One Spouse Violates the Agreement?
If one spouse violates the separation agreement, the other spouse can seek to have it enforced. How the enforcement is done depends upon whether the agreement is simply a private contract between the couple or whether it became part of a court order.
If the agreement is a private contract, the spouse who violated the contract can be sued for breach of contract in civil court. The harmed spouse can ask for money damages and/or request that the contract be specifically enforced. If the agreement is part of a court order, the spouse who violated it can be brought before a judge who may decide to hold him or her in contempt – which could include payment of attorney fees and jail.
Do You Need a Separation and Divorce Attorney?
You are not required to retain a lawyer, but once the separation agreement is notarized and signed, it becomes a binding contract under North Carolina law and is difficult to modify. Taking that into consideration, it is advisable to consult with an experienced family law attorney to help you draft a separation agreement that protects your rights as set forth in North Carolina’s frequently complex family law statutes
