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Separation Agreements in North Carolina

Statistically, around half of marriages ultimately end in legal separation and, ultimately, divorce. While some separations are amicable and others are less so, they are rarely quick or simple affairs even in the best of circumstances.

When a couple decides to separate, there are many questions that must be answered. How should the marital property be divided? How will child custody be determined? What amount of child support or spousal support is appropriate?

Often, one of the most amicable and affordable ways to settle these and other important questions is via a separation agreement signed by both parties. When successful, a separation agreement can save families the pain, expense, and frustration of a court battle and give couples a better chance of maintaining amicable personal relationships after separation.

In this post, we will discuss the difference between separation and divorce in North Carolina, what a separation agreement is, how they work, and when couples should consider one.

What Is a Separation Agreement?

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A separation agreement is a private contract between married individuals who intend to separate or are separated from one another.

Over the course of a marriage, couples naturally share and mix property, assets, and income. They make mutual decisions about where to live, what to buy, and how to raise any children they share. The separation agreement can temporarily or permanently resolve most or all the issues that would come up in a divorce, including:

  • Division of real property (land, the marital residence, other buildings)
  • Division of tangible personal property (like cars, jewelry, and other physical items)
  • Division of intangible personal property (like bank accounts, insurance policies, intellectual property or patents)
  • Who is responsible to pay certain debts
  • How custody of children shall be divided
  • Whether one spouse owes spousal support or child support to the other, and how much they should pay

Once signed, separation agreements are legally binding on both parties. Under North Carolina law, a separation agreement must be in writing, and signed and notarized by both parties.

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Who Can Enter a Separation Agreement?

Separation agreements can only be undertaken by couples who have already separated, or who will separate immediately after the agreement is signed. The terms must be agreed to willingly by both parties, not under duress or coercion, and with full knowledge of the relevant facts.

Under North Carolina law, a couple is considered separated if, and only if, both of the following are true:

  • The spouses are living in separate residences
  • At least one of the two spouses intends for the separation to be permanent

Under North Carolina law, there is no paperwork that needs to be signed to make a separation official. Once one spouse moves out with no desire to return, the couple is considered separated.

If you are still living with your spouse and continue to do so after a separation agreement is signed, you will not be considered separated, and your separation agreement may be considered void by North Carolina courts.

What Is the Difference Between Separation and Divorce?

A couple sitting on a couch while facing opposite directions

Couples are considered separated if they meet the definition we discussed above: they are living separately, and at least one spouse intends the separation to be permanent. Once the couple has been continuously separated for at least one year, they can permanently dissolve the marriage by filing for absolute divorce.

It’s important to understand that a separation agreement does not make a couple legally separated in North Carolina, and one is not needed for a couple to be considered separated or divorced. Unlike many other states, North Carolina does not have an official process or legal status for legally separated couples. Under North Carolina law, there is no legal distinction between couples that are separated but not yet divorced versus those who are still together.

However, that does not mean couples need to wait until divorce to begin resolving questions about property division, child custody, and other important matters. The separation agreement is not affected by the divorce and remains in full force and effect once the divorce is granted. For many couples, a separation agreement is the quickest, fairest, most private and least contentious way to proceed.

RELATED POST: What’s the Difference Between Separation and Divorce in North Carolina? – Myers Law Firm

What Are the Main Advantages of Signing a Separation Agreement?

There are many advantages to a separation agreement instead of going to court. Here are a few of the most notable:

  • Cost. Pursuing claims for custody, support, and property division can be extremely costly affairs, both in the money that is spent on lawyers, but also the length of time involved and the emotional toll it takes on the parties. A separation agreement can be a much cheaper and more efficient way to resolve issues.
  • Lower stress. Even when the split is relatively amicable, court proceedings are intensely painful and frustrating. The more that a separating couple can mutually work out their disagreements outside of court, the better the long-term outcome.
  • Privacy. Because a separation agreement is a private contract between two parties, the terms of the contract are not matters of public record.
  • Protection for both sides (even if there are no current disagreements). When couples separate, they might make verbal promises to one another about their mutual obligations regarding property division, who is responsible for certain debts, and other matters. If the split is amicable, you might initially trust the other party to hold up their end of the deal. But without a formal, binding contract, there’s nothing holding them to their verbal promises if new issues arise or circumstances change. A legally valid separation agreement keeps both parties accountable and protects their rights.
  • Allows for a clean separation before, or even without, a formal divorce. Although most couples who separate do eventually choose to get divorced, some choose to remain legally married (albeit separated) indefinitely. This might be for tax purposes, or so a dependent spouse can keep insurance benefits, or religious beliefs, or just to make it easier to resume the marriage if the couple eventually reconciles. In this case, a separation agreement can be an ideal tool to settle property and custody disputes and build separate lives while retaining certain advantages of still being married.
  • Can later be incorporated into a divorce decree. If you later decide to divorce, the separation agreement may be incorporated into the divorce decree. This comes with advantages and disadvantages. Your separation agreement can specify whether incorporation is mandatory or can be decided at the time of divorce. You should speak with an attorney about whether you want to take this step.

Can a Separation Agreement Be Modified or Terminated?

There are two ways that a separation agreement can be modified:

  • By mutual consent. A separation agreement is legally binding for both spouses, but if the terms of the agreement are no longer satisfactory to both sides, it can be amended or replaced with a new separation agreement. In either case, the new terms would have to be spelled out in writing, signed, and notarized—verbal agreements are not sufficient.
  • By court order. In general, the court cannot modify any terms of a separation agreement that pertain only to adults, except in rare circumstances. However, by law, the court still has ultimate authority over child-related matters, including child custody and child support. If you and your spouse have children together, and your separation agreement includes terms related to child custody or support, they could later be changed by court order if the court believes they are not in the best interests of the child.

Furthermore, a court could potentially overturn a separation agreement if you can show that it was signed under undue influence, coercion, or fraud. However, this is very rare and usually difficult to prove.

Can One Attorney Represent Both Spouses When Drafting a Separation Agreement?

No. This is a conflict of interest. Although our goal is to provide a resolution that is fair to all parties involved, both spouses should retain their own independent counsel to ensure they are receiving impartial legal advice from someone who has their best interests at heart—even if the separation is amicable.

What Happens if My Spouse Refuses to Comply With the Separation Agreement?

If your spouse violates the terms of your separation agreement, you can sue them for breach of contract—as you would for a breach of any other kind of private contract between individuals.

Remedies available for breach of contract include the award of monetary damages, or injunction and specific performance (in other words, the court orders the other spouse to fulfil their contractual obligations).

Note that the above applies only to an unincorporated separation agreement. If the separation agreement is incorporated into a divorce judgment, it can be enforced through contempt of court in a similar manner to a consent order (see below for more info).

What Is the Difference Between a Separation Agreement and a Consent Order (and Which Should I Choose)?

A woman looking thoughtfully out of the window

One common alternative (or companion) to a separation agreement is a consent order.

Like a separation agreement, a consent order can be used to resolve the relevant questions relating to divorce, including property division, custody, and how much alimony and/or child support should be paid. However, rather than being a private contract, a consent order is presented to a judge to review, approve, and sign.

This means the consent order is a matter of public record, but it also provides a stricter method of enforcement for a spouse who violates the terms. A spouse who violates a consent order may be held in contempt of court and potentially face fines, wage garnishment, property seizure, or even jail time. Further, a consent order can potentially be modified without mutual consent if one party files a motion for modification and the court approves it.

You do not need to choose one or the other. In fact, many separating couples choose to file a separation agreement to handle property matters and alimony between themselves, and a consent order for matters of custody and child support.

RELATED POST: Understand the Difference Between a Separation Agreement and a Consent Order – Myers Law Firm

What Happens if I Get Back Together With My Spouse After Signing a Separation Agreement (but Before Divorce)?

If a couple wishes to reconcile and moves back in together with the intention of resuming the marriage, the separation agreement will become null and void. This will affect future provisions (for example, a supporting spouse will no longer be required to pay alimony) but not those which have already occurred (such as no reimbursements for alimony previously paid).

Do note that, if the reconciliation is only temporary and the couple later separates again, they would need a new separation agreement—and the one-year waiting period for getting a divorce would reset to the new date of separation. Any calculations of equitable division of property or alimony payments would also be reset to this new date of separation.

What Happens to the Separation Agreement After a Divorce Is Finalized?

Two people sitting across from each other with a document between them and wedding rings on the table

This depends on how the agreement was set up, and whether it is incorporated into the divorce decree or not.

If the separation agreement becomes incorporated into the divorce, the provisions move under the court’s jurisdiction and can be enforced or modified by court order, like a consent order (as described above).

If the separation agreement is not incorporated into the divorce decree, it remains in force even after the divorce is finalized. This would mean that terms relating only to adults, such as alimony or property division, can still only be modified under normal circumstances by mutual consent.

Need Help With a North Carolina Separation Agreement? Talk With an Experienced Attorney

While separation agreements are usually a less costly and stressful way for couples to separate, they are still important legal contracts with serious implications—and potentially serious consequences if you later violate the terms or realize that the terms were unfair to begin with.

If you’re struggling with a recent separation in Charlotte or anywhere in Mecklenburg County, the attorneys at Myers Law Firm can help you sort through your options, protect your legal rights, and ensure the process goes as smoothly as possible under the circumstances.

Schedule your initial consultation by filling out our quick online contact form or calling our Charlotte office toll-free at 1-888-376-ATTY (2889).

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

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Can I Pay or Receive a Lump Sum Alimony in North Carolina?

Alimony payments are a frequent source of stress, frustration, and friction for many separated couples. While monthly payments are supposed to provide a stable source of income for the dependent spouse, they also often breed resentment—and if the supporting spouse gets behind on payments, you may need to get the court involved.

But while monthly alimony payments are by far the most common arrangement, they aren’t the only spousal support option for separated couples in North Carolina. In some cases, a lump sum payment might be a better alternative for both spouses.

To be clear, lump sum alimony is very rarely awarded by a judge, and it may not even be realistically possible for you. Such an arrangement usually requires a specific combination of circumstances to achieve. It is more likely to occur as part of a settlement agreement between the spouses. However, if these circumstances do apply to your situation, a lump sum alimony payment may be worth considering.

What Is a Lump Sum Alimony Payment?

Hands opening a wallet containing money

In most spousal support arrangements, the court sets a monthly amount that the paying spouse must pay their ex-spouse.  In North Carolina, this is known as either rehabilitative alimony (if the payments are set to expire after a fixed term) or permanent periodic alimony (if monthly installments are set to continue until either spouse dies or the receiving spouse remarries).

In a lump sum alimony arrangement—sometimes known as an alimony buyout—the supporting spouse’s entire alimony obligation is set at a total fixed amount to be paid, rather than a regularly recurring monthly payment.

In many cases, the entire obligation is paid out in one lump sum payment. However, lump sum alimony can also be paid in multiple installments, according to the timeline established in the agreement or court order. The key difference is that the total amount of the lump sum amount is fixed and cannot easily be changed or terminated, even if the spouse receiving alimony remarries or the spouse paying alimony dies.

Additionally, some or all the lump sum alimony obligation could be met by transferring real property owned by the paying spouse to the receiving spouse, in lieu of cash payments.

RELATED: How Long Do You Have to Pay Alimony in North Carolina?

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What Are the Advantages and Disadvantages of Lump Sum Alimony for the Dependent Spouse?

A person writing a check

From the perspective of the spouse receiving spousal support, a lump sum payout is often the ideal option (in the rare circumstances in which it is realistically available). This is true for many reasons, including:

  • Time value of money. A dollar you receive today is almost always more valuable than a dollar you might receive in the future. That’s not only because of inflation, but also because money you have now can be invested (or used to pay off debts) and used to gain additional earnings or reduce interest payments on a loan.
  • Cannot be changed. A lump sum payout is fixed regardless of whether you get remarried, get a higher paying job, or if your ex-spouse unexpectedly dies or falls on hard times while you would still otherwise be receiving monthly payments.
  • Certainty, simplicity, and closure. With monthly alimony installments, there’s always a risk that the payments will be late (or your ex-spouse will simply stop paying), or that your ex-spouse will request to change the monthly amount. This could lead to money troubles, time-consuming court actions, and more. But with a single or a few lump sum payments, both parties can quickly end any formal relationship and move on.

Keep in mind, though, that there are some potential dangers and downsides to lump sum alimony. Receiving a large, one-time payment might disqualify you from certain government assistance programs you might otherwise be eligible for.

You also need to be honest with yourself about whether you have the financial skills and discipline to handle a large transfer of cash or property responsibly. Alimony payments—whether periodic or lump sum—are meant in part to enable the economically disadvantaged spouse to maintain their marital standard of living. You don’t want to spend lavishly and quickly burn through a one-time spousal support payment.

If you feel that you would be tempted to overspend your lump sum alimony payout, a monthly alimony payment may be the safer and wiser choice.

What Are the Advantages and Disadvantages of Lump Sum Alimony for the Supporting Spouse?

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From the perspective of the person paying alimony, the benefits of a lump sum buyout are perhaps less attractive. A lot depends, however, on the supporting spouse’s financial means, as well as what they personally value.

Many of the same reasons that lump sum alimony is advantageous for the receiving spouse are obvious downsides for the paying spouse. If you pay it all up front rather than gradually over time, you pay the higher “present value” for that money and can’t invest it. You also can’t get your lump sum “refunded” if your former spouse remarries, gets a high paying job, or their circumstances change in other ways that would likely lower or even eliminate a monthly alimony payment. So, in the end, it’s very likely that a lump sum payment will cost you more.

There’s also the obvious fact that paying the equivalent of multiple years of alimony in just one or a few payments is extremely expensive and only an option for very wealthy individuals.

The main advantage, however, is simply being able to quickly and permanently sever ties with your former spouse and not have to worry about regular communication, monthly payments, or the risk of having to go back to court or be ordered to make higher alimony payments in the future. Additionally, a lump sum payment can be used as part of negotiations to make a lower lump sum payment when compared to the total amount that might be paid out over a multi-year term of alimony.

Separation is stressful, even in the best of circumstances, and divorces that start amicably often get messy when hashing out the divorce settlement agreement. For many people, the chance to make a clean break and move on with no lasting obligations is worth the likely extra cost.

RELATED: Who Gets Alimony in North Carolina and Why?

Is Lump Sum Alimony Even an Option for Me?

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Lump sum alimony is rare for many reasons. It’s not going to be an option in most situations.

The most straightforward way to get alimony as a lump sum is for both spouses to come to an agreement and memorialize the terms in a separation agreement. But this is much easier said than done. Even if the supporting spouse has the financial means to pay alimony in a lump sum, they may have no interest in doing so, or can’t agree on the amount.

A court might also order the supporting spouse to pay spousal support as lump sum if they have the means to do so, especially if the court feels that the spouse is likely to defy court orders or be unwilling (or even unable) to pay monthly installments in a timely fashion.

You can see why, for most separating couples, rehabilitative or permanent periodic alimony arrangements are often the only realistic solution. But if you feel lump sum alimony makes sense for your specific circumstances, it is worth discussing the matter further with a family law attorney, as well as a financial planner.

Myers Law Firm: Client-Focused Alimony Attorneys in Charlotte, NC

Alimony calculations are often extremely complex. Every separation is different, and under North Carolina law there are 16 separate factors that a judge must evaluate when determining the amount and duration of the payments.

If you have any questions about your alimony claim, or you believe that the current court order is unfair and should be changed, don’t wait any longer to speak to an experienced alimony attorney.

We understand how difficult and confusing the spousal support process can be, whether you’re the one making payments or the one receiving them. We are here to help you understand your options, be your strong ally and advocate as you navigate this challenging season of life, and help you arrive at a result that’s truly fair for all involved.

To schedule your initial consultation, please call our Charlotte office toll-free at 1-888-376-ATTY (2889) or fill out and submit our online contact form. We will follow up and get in touch with you as soon as possible.

References

N.C. General Statutes § 50-16.7 (2015)

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

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How Is Property Acquired After a Separation—but Before Division—Divided?

Marriage is the most complex relationship humans can enter. While it might be nice to think love is all that really matters, there are many factors at play when two lives intertwine. And when the time comes that a married couple decides to separate—and, eventually divorce—untangling all the various elements can be a challenge.

One area where that is especially true is for the marital estate, and determination of which property now goes to which spouse—including property acquired after separation but before the property is divided. Sometimes this period of time can cover many months or years.

In North Carolina, the determination of what constitutes marital property to be divided is based on the date of separation. However, a long period of time can pass between the date of separation and the date when the spouses agree to divide the property or a judge hears the case. The date when the property is actually distributed is called the date of distribution.

Between the date of separation and the date of distribution, property may change value, be sold, or be acquired. This property is called divisible property, and determining what happens with this property can be complicated.

Let’s review what happens to property acquired in that period between the date of separation and the date of distribution, starting with a quick overview of property division in North Carolina.

RELATED: 5 Common Questions About Property Division During a Divorce

How Does Property Division Work in North Carolina?

Close up of wedding rings and divorce contract with divorcing couple in background

As discussed in our Is Everything Split 50/50 in a Divorce in North Carolina? blog post, North Carolina is an equitable distribution state. While a community property state splits all marital assets and debts evenly, an equitable division state like ours divides marital property “equitably”, which may or may not be equal, as determined “in the eyes of the court.”

While it would seem as though equal (a 50/50 split) and equitable are the same thing, the key distinction is that equal is exactly even and equitable implies a sense of fairness in the division. Along with that, “in the eyes of the court” is an important caveat.

For example, consider a situation in which one spouse has a disability that requires costly treatment and prevents them from working. In an equitable distribution state, the judge could take this into consideration when dividing the marital property and may grant them extra resources due to greater need. But if the same divorce were to happen in a community property state, the value of all marital assets would be totaled, and each spouse would receive exactly as much as the other spouse.

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What Is Considered Marital Property?

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Things of value like the marital home, bank accounts, retirement accounts, and stock options that were acquired during the marriage can be considered marital property. Other valuable assets can fail into this category—as long as they were obtained prior to the date of separation—even though they are held in the name of one spouse only.

That means when “his” platinum necklace or “her” new boat are bought prior to separation, they are technically part of the marital estate (for distribution purposes). The appropriate valuation will be assessed, and the judge will factor it into their considerations when determining a final distribution.

RELATED: What Does Marital Property Mean in Property Division Cases?

What Is Considered Separate Property?

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The general rule here is that property acquired in the following ways would potentially be considered one spouse’s separate property, rather than marital property, and not divided in the divorce.

  • Property already owned by one spouse before the marriage began
  • Property acquired by one spouse after legal separation
  • Gifts or inheritance explicitly designated to one spouse only, even if it occurred during the marriage.

However, there are some important caveats.

One is that North Carolina law presumes that all property owned by either spouse on the date of separation is marital property. So, if you believe a certain asset should be considered separate property instead, you will need to prove it to the court.

Another is that there are many circumstances in which separate property can become marital property.

A court may also consider what funds were used to purchase the property. To go back to the necklace- and boat-owning couple:

  • If he bought the necklace with money that was marital property, the necklace would be marital property even if purchased after the date of separation. Cash accumulated during a marriage counts as marital assets, no matter when (or by whom) it is spent.
  • If she bought the boat with money she earned after the start of the separation, then she will likely be able to keep the boat without having it count against her share of the final distribution.

While that might seem fairly straightforward, we also need to address a few key definitions and requirements involved in the North Carolina divorce process.

Divorce and Legal Separation in North Carolina

The North Carolina divorce law has a specific definition of legal separation that must be met for an “absolute divorce” to be granted—and this plays a role in property distribution.

To meet the legal requirements for the official, one-year separation, the following factors must hold true:

1) Spouses must be living in separate homes.

2) At least one spouse intends the separation to be permanent.

These requirements for an “absolute divorce” to ultimately be granted in our state can also affect what kind of assets are considered which kind of property.

RELATED: What’s the Difference Between Separation and Divorce in North Carolina?

How Separation Status Can Affect Property Distribution

If a couple doesn’t meet the above circumstances, they will not be considered separated and any property they acquire will typically be considered marital property.

It should be noted that North Carolina does not require any paperwork or legal documentation of a separation. Once a spouse moves out of the marital residence (with the intention of doing so permanently), the couple is considered separated. However, it is important to keep your own records in case the date of separation is later challenged.

Of course, you and your spouse could also choose to draft and sign an official separation and property settlement agreement (commonly known as a separation agreement), which will formalize the date of separation and can even settle property distribution, child custody, child support, spousal support, and other disputes that would otherwise fall to a court to decide. But this is completely optional.

Property Acquisitions During Brief Reconciliation Periods Between Separations

The fact that couples can (and do) separate, decide to “give it another chance,” and then separate again provides ample opportunity to create complicated situations when one or both spouses acquire property. In this instance, anything that one or the other spouse decides to acquire during the initial, less-than-one-year separation should considered marital property, even though the couple wasn’t together (and even intending to divorce) at the time of purchase.

The spouse who bought the asset during the “trial” separation, though, might be inclined to think it should be designated as separate property. Since the couple was retroactively considered to be not legally separated at the time, however, this argument may not stand up in court.

What Is Divisible Property?

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North Carolina recognizes a third category beyond marital and separate property: divisible property. Divisible property is the term given to property that is acquired or changes in value between the date of separation and the date the property is actually divided. This category of property can be distributed between the spouses, just like marital property.

Determining what constitutes divisible property can be complicated. Divisible property accounts for assets that change value between the separation and date of distribution. These changes could be appreciation or diminution in value. It also includes any property received after the date of separation that was earned during the marriage.

Examples of divisible property include bonuses and sales commission that were earned during the marriage but not received by a spouse until after the date of separation. Also, the passive appreciation of an asset, such as a house, is divisible property.

Determining what is passive versus active appreciation or diminution is often complicated. For example, if one spouse lives in the former marital house, does not make any improvements, and the house increases in value, the increase will be passive and is therefore divisible property. If the spouse makes improvements to the house, though, a determination needs to be made about what was passive versus active appreciation. Another example could be stocks. If the stocks were owned on the date of separation and increase in value due to the market, the increase is passive and therefore divisible property. If one spouse is actively trading the stocks, the increase could be active and not divisible.

Myers Law Firm Provides the Help You Need in Divorce Law

Myers Law Firm is experienced in helping clients navigate the challenging aspects of divorce law. Our attorneys always listen to you and use our experience in the North Carolina legal system to fight for your fair share of marital assets. If you’d like, you can learn about our divorce lawyers on this page.

If you are interested in scheduling a consultation with our firm, please either fill out the brief form below or call our Charlotte office toll-free at 1-888-376-ATTY (2889).

References

Howell, C. (2017, September 8). Equitable Distribution: The Marital Property Presumption. On the Civil Side: A UNC School of Government Blog. Retrieved from https://civil.sog.unc.edu/equitable-distribution-the-marital-property-presumption/

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

Contact Myers Law Firm

We are committed to continuing to serve our clients’ legal needs

Single Divider

We are able to meet with clients and hold consultations with prospective clients via telephone or video conference. If you need to contact us, please do not hesitate; we are happy to speak with you about your situation, your needs, and how we can help.

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Understand the Difference Between a Separation Agreement and a Consent Order

If your marriage is deteriorating, you may be looking for ways to start the separation process. If you’re struggling to figure out what to do, you might not realize that you have options other than immediately going to court to fight things out.

In this blog, we’ll review two legal options that are available to separating couples as alternatives to a court battle: separation agreements and consent orders.

What’s the Difference Between a Separation Agreement and a Consent Order

If you’re looking for ways to resolve the issues involved with a ending your marital relationship, a separation agreement or consent order could help. Here are the differences between them:

Separation Agreement

A separation agreement is a private contract between spouses that outlines how you and your spouse want to settle the issues related to your separation and the end of the marriage. You can enter into a separation agreement at any time after you separate. The terms of the agreement remain in full force and effect even after the actual divorce, which you cannot get until you have been separated for one year. This contract can deal with all issues related to a separation and end all aspects of the marital relationship except that you cannot get remarried until you are divorced.

Because a separation agreement is a contract, it’s not on public record and one party can sue if the other violates the terms of the agreement. Signing a separation agreement is serious, so it’s always a good idea to consult an experienced North Carolina divorce attorney before signing one.

Consent Order

A consent order is similar to a separation agreement in that it can resolve all issues related to the dissolution of the marriage. However, the parties sign it and it is then presented to a judge and it becomes a court order which is enforceable by contempt. To get a consent order, you must file a lawsuit against the other person. And because it’s part of a lawsuit, any consent orders are on public record.

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How Do I Know Which Option Is Right for Me?

Being able to get a consent order or separation agreement in place is generally the best option. This is because it means you and your spouse have resolved the issues related to your separation. This avoids going through an emotional, expensive process that can take a tremendous amount of time and effort by having to go to court and have a judge make the decision for you. Determining which option is right for you can be different in different cases, but it is generally best to put property division and alimony arrangements in a separation agreement and custody and child support agreements in a consent order.

RELATED: What Do My North Carolina Child Support Payments Cover?

Need Help During Your Separation or Divorce? Talk to a Lawyer First

If you’re struggling to initiate a separation, a consent order or separation agreement could be the solution you need. One of the best ways to protect your best interests, understand all your options, and make the process go smoothly as possible is to work with an experienced divorce attorney. An attorney can help you take the necessary steps to implement a separation agreement or consent order.

At Myers Law Firm, we have over 50 years of combined experience standing with people going through separations and divorces in North Carolina. We know how challenging it can be to identify the best solution for you and your family, which is why we make sure you understand the options available to you so you can make the best choice possible.

Myers Law Firm: Supporting People Through Separation and Divorce for Over 40 Years

If you need a separation, divorce, or ways to resolve a separation disagreement, please don’t hesitate to reach out to us and see how we can assist you. We’ve helped countless clients like you get the tools and resources they need to imagine a brighter future, even when the present is difficult. If you need help with a divorce or separation in Charlotte or anywhere in Mecklenburg County, schedule your initial consultation by filling out our quick online contact form or calling our Charlotte office toll-free at 1-888-376-ATTY (2889).

We are ready to walk with you every step of the way, providing the guidance and counsel you need to face the stressful prospect of a family law case with confidence.

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

Contact Myers Law Firm

We are committed to continuing to serve our clients’ legal needs

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What Can I Do About Parental Alienation?

When parents separate or divorce, children are forced to adjust in multiple ways. No matter how parents feel about each other, it’s critical that children continue to feel loved and secure, which requires a level of compromise and joint effort between the parents.

Unfortunately, not all parents put their child’s interests first during a divorce. Sometimes, one parent engages in manipulation that undermines and damages the other parent’s relationship with the child. This type of relationship damage is called parental alienation, and it can lead to grief and emotional anguish, not to mention concern for the children’s wellbeing and sense of security.

In this blog article, we’ll explore parental alienation and help you identify it sooner rather than later. We’ll also discuss what to do about parental alienation and provide advice about how to address the problem.

What Is Parental Alienation and Why Does It Happen?

Parental alienation occurs when a parent-child relationship deteriorates and becomes less close than it was due to interference and manipulation from the other parent. The engagement becomes more negative, less frequent, or both, and the parent feels like they’ve lost critical elements of their connection with their child. Parental alienation can range from mild to severe.

Relationships between parents and children will naturally evolve as the child (and the parent) grow and change. Even people who are very close with their parents can probably remember times in their life when the relationship became more distant for a while.

However, parental alienation is different than the natural relationship changes that life brings. Parental alienation happens because one parent engages in behaviors that actively harm the other parent’s relationship with the child. This type of harmful behavior is most common in cases that involve divorce or separation.

Sometimes, the other parent is deliberately working to alienate the child from the other parent out of anger or spite, but that’s not always the case. The parent who’s causing the alienation may not realize what they’re doing on a conscious level, or they may tell themselves they’re only doing what is best for the child.

No matter why parental alienation happens, it can lead to emotional harm and trauma for both children and parents. So, parental alienation always needs to be recognized and addressed as early as possible.

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Parental Alienation: Warning Signs and Symptoms

Most children, especially young children, want to please their parents. When one parent fosters negativity toward the other, the child can feel conflicted and guilty. A child who is starting to experience parental alienation might experience, anxiety, anger, depression, problems at school, eating or sleeping disorders, and other behavioral issues.

The parent who is causing the alienation may hide their behavior or make no secret of it. Either way, watch for signs that parental alienation may be beginning in your family. The other parent might:

  • Deny you access to your child in person or over the phone
  • Withhold important information about your child or their activities
  • Schedule alternatives to tempt your child away from your scheduled time
  • Eavesdrop on your phone calls or monitor your text messages
  • Lie to you or your child about events and conversations
  • Refuse to pass along gifts or money you send to your child
  • Allow or encourage your child to say negative things about you
  • React poorly if your child says positive things about you
  • Interrupt your time with your child with lots of phone calls or text messages
  • Instruct your child to spy on you and report back
  • Use your child as a messenger instead of communicating directly
  • Unnecessarily share details of the divorce or settlement your child
  • Deliberately cause your child to experience hardship (skipped meals, unmet needs) and then blame you
  • Make statements that cause you to worry about your child when nothing is wrong
  • Refuse to be flexible and make reasonable changes to scheduling and visitation
  • Offer your child more than an age-appropriate say in scheduling and timeshare details, often while encouraging or manipulating the child to side with them in disagreements

If you see or suspect any of these alienating behaviors, you need to monitor the situation and determine what is going on. Just because one or two of these occur does not mean parental alienation is occurring. As mentioned above, relationships between parents and children change over time. However, if these actions are occurring on a regular and consistent basis, you should act sooner rather than later for the sake of your child’s wellbeing and your relationship with them.

What Can I Do About Parental Alienation?

Parental alienation can be very difficult to prove in court. However, if you can provide evidence and make strong arguments, you may be able to convince the court to intervene, possibly by changing the custody arrangements.

To gather evidence of parental alienation and make a compelling case in court, you should follow these steps.

Keep a Record of Events

Write down the date and circumstance any time you believe you were denied rightful access to your child. You should also record any incidents where your ex lied about you or spoke negatively about you in front of your child. If you end up in court, the records you’ve kept may help establish patterns of alienating behavior and convince a judge to intervene.

Create a Paper Trail

Hold on to emails, texts, and other communications in which you asked to see your child or discussed legal arrangements. Not only does this prove your effort to maintain your relationship with your child, but it could provide valuable proof if your ex lies about these conversations or doesn’t keep to their word.

Explore Counseling

An experienced therapist who has training in family issues should know about parental alienation and understand how to fight it. If you suspect parental alienation or see it starting to happen, talking with a therapist can be a valuable step. Not only will therapy give you and the child tools and vocabulary to address the issue, but it will also show that you’re working to improve the situation.

You may even want to consider asking the other parent to attend counseling sessions with you. These sessions can be joint or occur separately. Either way, it could lead to valuable progress. And making these types of efforts can only help your custody case, no matter how your ex responds. If you make a legitimate attempt to reach out and your ex refuses, a court may look favorably on your efforts in a future hearing.

Act Fast and Be Tenacious

Fighting against parental alienation can feel frustrating and exhausting, especially when the problem has become severe. However, you wouldn’t give up if the threat to your child were related to health or safety, so don’t give up here. Your relationship with your child, as well as their overall wellbeing, are at stake.

Remember also that it’s important to address parental alienation as soon as possible. If your ex succeeds in damaging your relationship with your child, it can create a vicious cycle. Your ex may claim that you’re spending less time with your child because you don’t care, which may drive your child further away. It’s never too late to try and repair the damage done by alienation, but it’s also never too early to

Don’t Fight Bad Behavior With Bad Behavior

If you believe your ex is trying to harm your relationship with your child, the worst thing you can do is to respond in kind. Do not talk badly about your ex in front of your child, and don’t try to keep your child away from the other parent in violation of a custody order or agreement. Remember that when you take the high road, the law is on your side. Family court judges do not take kindly to parents violating court orders or badmouthing each other in front of their children. If your ex is engaging in these behaviors and a judge finds out, your ex will be in trouble. But if you start behaving the same way, all your leverage will be gone.

Talk to an Experienced Family Law Attorney

As mentioned, parental alienation can be difficult to prove in court. However, an experienced attorney should have the resources and training required to identify parental alienation and bring it to light in court. Sometimes, a lawyer can help you address the problem without even going to court. Your attorney can communicate with your ex and let them know you have representation and are dead serious about fighting for your relationship with your child, which may make your ex think twice before continuing to lie and manipulate.

RELATED: 5 Child Custody Myths, Debunked

Myers Law Firm Can Help With Parental Alienation and Child Custody Issues in Charlotte, North Carolina

At Myers Law Firm, we understand parental alienation and other complicated issues that come up during a separation or divorce. We have years of experience guiding clients through family law matters, and we can come up with practical, affordable legal strategies to address whatever needs and challenges you’re facing.

To schedule your initial consultation with an attorney from our team, please call us at 888-376-2889 or use the simple contact form on our website.

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

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What’s the Difference Between Separation and Divorce in North Carolina?

The misconception that separation and divorce are the same is all too common. In fact, separation and divorce are two different things, and they serve different purposes.

In this post, we’ll go over the differences between divorce and separation in North Carolina, and we’ll provide insight about how the two events affect you, your relationship, and your family.

Separation Is Part of the North Carolina Divorce Process

Every marriage is different, and so there’s no one right way to address differences, take time away, or end a marriage. While divorce is the way to end the legal bond between two people, separation is the first step that can lead to many possible results, including divorce, indefinite separation, or reconciliation.

Defining Separation

Some states have legal separation, which is a legal filing in which a married couple formalizes a separation without dissolving their marriage. In North Carolina, there’s no official document or any other formal process for a married couple to become “legally separated”. You and your ex are only separated if you’re living apart and at least one of you intends to leave the marriage permanently. If one of you moves out of the marital home with the intent of leaving the marriage, you can mark the date of separation on your calendar, and that’s enough.

North Carolina couples must remain separated continuously for one year before they can file for divorce. If you get back together and resume the marital relationship but then realize it was a mistake, you have to start the one-year clock over again. However, isolated “hook-ups” do not automatically restart the clock, even if you and your ex engaged in sexual intercourse.

Initiating a separation is simple, but it also opens the door for couples to begin dealing with the issues of custody, child support, spousal support, and property division. This is where the real conflict comes into play.

Defining Divorce

Separation in North Carolina requires couples to live separate and apart for one year. However, separation does not affect your marital status. Unless your marriage was not legally valid and you can get an annulment (which is rare in North Carolina), divorce is the only way to permanently dissolve your marriage and go back to being a single person for legal purposes.

Technically, filing for divorce is a simple process. All you need to do is file a lawsuit with the court and go through the process, which takes about 50–60 days after the other party is served with the lawsuit. In the end, you get a judgment of divorce, and your marriage is over.

Issues Related to Separation

Although obtaining the judgment of divorce is simple, all the issues that will come up as a result of the separation can get very complicated. These are the major legal issues that go along with dissolving a marriage: property division (equitable distribution), child custody, child support, and spousal support (alimony). The legal process of resolving these divorce-related claims is where all the conflict actually happens. In contentious cases, these issues may not be finalized until after the divorce is final.

Remember this, because it’s important: You do not have to be separated for one year in order to resolve claims for child custody, child support, spousal support, or property division. You can resolve them at any time during the one-year separation period, and you can even use a separation agreement to resolve them before you actually separate (so long as you separate within 30 days of creating the agreement). We’ll talk more about separation agreements in the following section.

To learn more about the process of filing for and finalizing an absolute divorce in North Carolina, read our blog article about this subject.

RELATED: How to Obtain an Absolute Divorce in Mecklenburg County

What is a Separation Agreement in North Carolina?

A separation agreement is a legal contract between you and your spouse that resolves the legal issues we discussed earlier (child custody, child support, property division, spousal support). There’s no law in North Carolina that requires you to get a separation agreement, and a court will not issue one for you. Only you and your spouse can create the agreement, and both of you need to be on board.

If you and your spouse can agree on the terms, your separation agreement can resolve any or all of the major legal issues surrounding your divorce. Your agreement won’t be valid unless both parties sign the document in front of a notary, who will notarize the signatures.

You can also put your agreement into a document called a consent order. This is an agreement that is signed by you and your ex and then by a judge. There are different reasons for doing a separation agreement versus a consent order, and we’ll talk about these differences in a future blog article.

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Do I Need a Divorce Attorney If I’m Separated?

If you’re separated or planning to leave the marriage, it’s never too early to start getting legal advice from an experienced family law attorney. Divorce can be a complicated, confusing, and stressful process, especially if you try to go through it without a lawyer.

Not only can a divorce lawyer take all the paperwork and legal preparation off your plate and make sure your rights are protected, but they will also attend to important details you may miss. As an example, some couples forget about various insurance accounts or retirement funds, which often name beneficiaries. If these accounts don’t get included in property division, it can be a mess to figure out what to do with them after a divorce finalizes.

Certain situations also demand the help of an attorney for the health and safety of the family. If you have a partner who is abusive or unstable, a lawyer can get the authorities involved and get court orders that protect you and your children.

No matter what your situation looks like, hiring a lawyer will most likely save you money in the long run unless you have a very simple, uncontested divorce. Make sure to choose an attorney who has experience handling divorce cases, and feel free to meet with multiple lawyers and search for someone who gives you confidence and makes you feel at ease. Your divorce may be a long process, and having the right advocate by your side can make all the difference.

Contact Myers Law Firm If You Need Help with a Divorce or Family Law Matter in Charlotte, North Carolina

At Myers Law Firm, we understand that the end of a marriage is never an easy time for either spouse, so we approach every case with compassion and understanding to search for solutions. While we excel at respectful negotiation and will work to find common ground with the other side, we are ready to stand up in court and fight for your rights with an aggressive approach if that’s what it takes.

The attorneys at Myers Law Firm have experience handling all of the major family law issues that surround the end of a marriage, including alimony, child custody, child support, and property division. We’re here if you need help. To get in touch with us, call our offices at 888-376-2889 or fill out our online contact form today.

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

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We are able to meet with clients and hold consultations with prospective clients via telephone or video conference. If you need to contact us, please do not hesitate; we are happy to speak with you about your situation, your needs, and how we can help.

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Surviving Marital Separation: 6 Tips That Can Get You Through

For North Carolina couples, a 12-month period of marital separation must take place before either spouse can file for divorce. But not all separations end in divorce.

A marital separation can be a time of healing, introspection, and reconciliation. Separations can provide valuable time for couples to sort out their wants, needs, and individuality as they examine their relationship with their spouse (and often with themselves).

Even if a separation can have positive effects, that doesn’t mean separating is easy. Whether you end up filing for divorce or reconciling, a period of trial separation often sets off a rollercoaster ride of emotions and potential conflicts. If you’re experiencing a marital separation or facing the prospect of one, keep reading to learn some tips that can help you survive your separation.

Separating From Your Spouse? Here’s How to Make the Process Less Painful

Every situation is different, but we’ve found in years of family law practice that couples can take a few consistent steps to make their separations less painful and complicated.

Avoid Over-Sharing on Social Media

Keep the details of your separation to yourself. Avoid sharing too many details with friends, colleagues, or even family members and be especially cautious on social media. It’s healthy to find a support system, but use judgment while doing so. What you post on the internet is forever, and many people find that harsh words posted in the heat of the moment come back to haunt them later during the divorce process. Remember that anything you share on the internet can be used against you later during a court case, so it’s usually best to avoid posting about your separation at all.

Prioritize Emotional and Mental Health Over “Winning”

If your split is less than friendly, you may feel tempted to get back at your spouse, get revenge, or “win” the divorce. While feelings of hurt and even spite are normal, they shouldn’t be the focus of your separation.

Letting these feelings control your actions can backfire on multiple levels. Not only can you harm your case for divorce-related issues like child custody and child support, but giving in to anger and vengefulness can also hurt you on an emotional and psychological level. Try to focus on yourself during this time; prioritize your emotional health and well-being instead of seeing how much you can hurt your ex.

Practice Self-Care

It’s easy to get down and start feeling hopeless during a difficult time. Make sure to carve out time for yourself and acknowledge feelings of depression or anxiety rather than try to deny them. This is a good period of time to evaluate areas of your life that aren’t working and try to make positive changes. You may want to focus on exercise and fitness, get in touch with friends you haven’t made time for in a while, explore meditation, or take up a new hobby.

It may also help to keep a diary and write down what you’re experiencing, even if you’ve never been much of a writer. You may be surprised at what comes out, and it might give you insight on how to move forward toward the future you want.

Finally, try and settle on a daily schedule that includes productive activities and keeps you moving toward some goals. With all the change and uncertainty in your life, it’s easy to lose any sense of normalcy. Creating a routine can help you feel like you’re moving in a particular direction instead of just drifting without purpose.

Explore Therapy and Divorce Support Groups

No matter how long you’ve been married, a split is a major lifestyle change. Even if you were unhappily married, you were still used to seeing your ex-partner, and a sudden shift can leave you feeling disoriented and sad.

You’re far from the first person to experience these feelings during a separation. Connecting with people going through the same process can make it easier to cope and heal, and therapy or counseling can help you work through personal issues and pain. If you’re not sure where to start, Psychology Today hosts a search tool you can use to find divorce support groups in your area.

Audit Your Finances

Divorce can be an expensive process. If you and your spouse are separated, take this opportunity to audit your finances and look for ways to save. If that you do make your split permanent, you’ll need to replace shared items, find a new place to live, and potentially get your own essentials. Expenses you should plan for may include insurance policies, vehicles, and a phone plan. Keeping track of your expenses and cutting back on non-essential purchases is essential to prepare for an uncertain future.

Get Your Records in Order

Having your vital documents and records organized is never a bad idea, but it’s especially critical if you’ve separated from your spouse. Items you’ll need to gather include information on loans, credit card statements, pay stubs, employment history, healthcare, retirement information, and more.

If you have questions about what documents you should be collecting and organizing, or if you need help doing so, talk to an experienced family lawyer right away. If you have a will, power of attorney, or healthcare power of attorney that names your spouse as the executor or attorney-in-fact, you need to revise these documents.

Put Your Children’s Needs First

Divorce is never easy on kids. The COVID-19 pandemic has already created an anxious and unsettling environment for many children, so you’ll need to be extra mindful about how your separation affects your family.

When you and your spouse first separate, the number one thing to do is make sure you have a plan that prioritizes the needs and well-being of your kids. Decide how you’ll co-parent, implement a routine, and make sure to spend plenty of time with your children throughout the process. Do the best you can to keep your kids out of any conflicts with the other parent.

It’s also important to communicate with your children and explain to them what’s going on. Be as honest as you reasonably can based on your child’s age, developmental level, and temperament. However, you must keep them out of the conflict — and never bad-mouth the other parent to your kids! Talking bad about your ex in front of the kids is not only unfair but could hurt you during a court case if it comes out.

You’ll need to discuss your co-parenting plan with your partner, so try to be as level-headed and empathetic as you can. If you need help reaching an arrangement you both can live with, seek the advice of an experienced family law attorney.

RELATED: How to Co-Parent: 6 Tips for Success

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Experiencing a Separation or Dealing With Divorce in Charlotte? Contact Myers Law Firm Today

At Myers Law Firm, we have decades of experience helping clients in Charlotte and throughout Mecklenburg County find the best solutions for their families. If you need help with legal separation, divorce, or related family issues, get in touch with us. We can meet with you to discuss your options and a create a plan to protect your rights.

To schedule your initial consultation with an experienced family law attorney from the Myers Law Firm team, call us at (888) 376-2889 or use our quick and easy contact form.

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

Contact Myers Law Firm

We are committed to continuing to serve our clients’ legal needs

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We are able to meet with clients and hold consultations with prospective clients via telephone or video conference. If you need to contact us, please do not hesitate; we are happy to speak with you about your situation, your needs, and how we can help.

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Premartial and Postmartial Agreements

Contrary to popular belief, premarital and postmarital agreements (which most non-lawyers call prenuptial and postnuptial agreements or “prenups” and “postnups” for short) aren’t just tools for the wealthy and frequently divorced. Signing a prenuptial or postnuptial agreement can help a couple protect their individual assets and clarify expectations before and during the marriage. Prenups and postnups can also control what happens in case a couple separates and eventually divorces.

For various reasons, many people want to know whether you can sign a prenup if you’re already married. The answer is no, but that doesn’t mean you can’t put a marital agreement in place — it just needs to be a postnuptial or postmarital agreement.

In this blog, we’ll explain when you can sign a prenup and discuss the difference between prenups and postnups. We’ll also describe some scenarios where creating a marriage agreement may be the right choice.

For the rest of this article, we’ll refer to marital agreements as prenuptial agreements and postnuptial agreements or prenups and postnups since that’s what most people call them. Just remember that prenuptial agreement and premarital agreement are different terms for the same thing, and the same is true for postnuptial agreement and postmarital agreement.

When Can I Sign a Prenup?

Prenuptial agreements are legal agreements that couples sign before getting married. A prenuptial agreement can create a structure for the financial aspects of the relationship during the marriage, and it can also control how assets and property get divided if the marriage ends in a separation and divorce.

As we mentioned earlier, North Carolina law says you can only sign a prenuptial agreement before you get married. However, if you’re looking for ways to protect your assets after you’ve already gotten married, a postnuptial agreement is a good option. Like a prenup, a postnup describes how you and your spouse will divide property in the event of a split; the only difference is that you sign the postnup after the wedding.

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How Are Postnups Different Than Prenups in North Carolina?

Like prenups, postnups describe what will happen to a couple’s assets in the event of a separation and divorce. Prenups can include stipulations for spousal support, but they can’t settle issues of child custody and child support. On the other hand, postnups usually can’t settle issues of spousal support. This is one of the main differences between prenups and postnups.

It might be possible for you and your spouse to use the same lawyer to create a postnuptial agreement, but we strongly discourage it. Instead, we recommend you and your spouse seek independent attorneys, which will help protect both parties and ensure that all the important issues get addressed.

You can also get a postnuptial agreement even if you already have a prenuptial agreement. The new agreement will replace the old one. So, if you and your spouse are no longer happy with the terms of your prenuptial agreement, a postnuptial agreement may be a good solution.

RELATED: Who Gets the Dog in a Divorce? Understanding North Carolina Pet Custody Laws

No matter where you are in your marriage, it’s never wrong to think about protecting your assets. Married couples separate and divorce for all kinds of reasons, from infidelity to the spouses growing and changing as people over time. And signing a marital agreement, whether it’s a prenup or postnup, doesn’t mean your marriage is on shaky ground. In fact, working with your partner to create a marital agreement can spark some healthy conversations about finances and other practical matters.

Here are a few potential scenarios where a prenup or postnup can prove useful:

  • You or your spouse have children from previous marriages. When families blend, it can create legal complications down the road, so you may want to protect your child’s inheritance in case you die unexpectedly or the marriage ends. A prenup or postnup can protect your wishes and provide for your child’s future.
  • One of you acquires an inheritance and wants to keep it separate. Inheritances technically count as separate property in a divorce, but it’s very easy to lose that protection by commingling your inheritance with marital property. A prenup or postnup can clearly define an inheritance and make sure it stays with you in case the marriage ends.
  • One of you makes a financial decision the other doesn’t agree with. Let’s say your spouse prefers to make high-risk investments, and you’re not comfortable with the potential losses. In that case, a marital agreement can protect you from the fallout in case an investment goes bust.

What if My Spouse and I Already Plan to Separate?

If you and your spouse already know you want to separate or divorce and you don’t have a prenup or postnup in place, then you shouldn’t create a postnup now. Instead, you need a separation agreement.

A separation agreement is a document you and your spouse sign when you expect to separate within 30 days. Separation agreements aren’t limited like postnups — they can resolve all aspects of separation and divorce. If you and your spouse are on good enough terms to work out a separation agreement, then you can separate peacefully and minimize the amount of time and money spent.

If you have questions about prenuptial and postnuptial agreements or separation agreements, get in touch with an experienced family law attorney. Only an attorney can give you expert advice based on your unique circumstances.

Have Questions About Prenups and Postnups in North Carolina? Myers Law Firm Can Help

If you have questions about drafting a prenuptial or postnuptial agreement or about how an existing agreement will affect your divorce case, the team at Myers Law Firm is here to help. We can answer any questions you may have and address your issues with legal solutions tailored to your unique needs.

While we pride ourselves in handling divorce issues peaceably and with compassion, we won’t hesitate to fight aggressively to protect your rights. To schedule your initial consultation, please call our Charlotte office toll-free at 1-888-376-ATTY (2889) or contact us online by filling out our online contact form.

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

Contact Myers Law Firm

We are committed to continuing to serve our clients’ legal needs

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We are able to meet with clients and hold consultations with prospective clients via telephone or video conference. If you need to contact us, please do not hesitate; we are happy to speak with you about your situation, your needs, and how we can help.

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Prenuptial Agreement

While many people associate prenuptial agreements with the very wealthy, they can actually benefit couples at all levels of income and debt. In fact, at Myers Law Firm, we encourage all couples to consider signing one before they marry. 

Keep reading to learn more about how prenuptial and postnuptial agreements work in North Carolina as well as how they affect divorce cases. 

A Brief Explanation of Property Division in North Carolina

The first step towards understanding North Carolina nuptial agreements is learning about divorce and property division. After all, marriages don’t simply involve a romantic union—you’re also combining your finances and assets. 

For legal purposes, married couples have three types of property: 

  • Marital property: Most income, property, assets, and debt that you acquire during a marriage. 
  • Divisible property: Property that was earned before a couple separates but then changes in value post-separation. 
  • Separate property: Income, property, assets, and debt you acquired before your marriage. Additionally, inheritances and gifts to a single spouse are typically separate property. 

North Carolina is an equitable distribution state. In other words, divorcing couples must divide their marital and divisible property fairly (this doesn’t have to be a 50/50 split, although the court will start by presuming a 50/50 split is fair). Your separate property will stay yours unless you commingled it with marital property. 

What Are Prenuptial and Postnuptial Agreements, and How Do They Affect Property Division? 

Nuptial agreements, when valid, dictate how a couple will divide their property and debt if they separate or divorce. They can also stipulate how much alimony or spousal support a spouse will receive. 

RELATED: Considering a DIY Divorce? Read This First

There are two types of nuptial agreements: prenuptial and postnuptial. You enter a prenuptial agreement (prenup) before the wedding. If you sign an agreement during your marriage but before a separation, it’s a postnuptial agreement (postnup). 

You might benefit from a prenup or postnup if: 

  • You or your spouse accumulated significant assets before you married. 
  • One of you has significant debt or plans to take on debt. 
  • You have a child from a previous marriage and want to protect his or her inheritance. 
  • You want to protect a family business. 
  • You want to exclude family heirlooms, property, or other valuable assets from your marital property. 
  • You want to predetermine how much alimony a spouse will receive. 
  • You are supporting your spouse while he or she completes a lucrative academic or vocational program. 

In other words, if you want to control your spouse’s access to certain assets or limit your exposure to his or her debt, a prenup or postnup is a good idea. 

Prenups also offer another benefit: transparency. Financial problems are one of the most common causes of divorce. To enter a prenup or postnup, you and your fiancé or spouse will have to discuss your financial situations with each other in detail since failure to disclose your debts and assets might invalidate the nuptial agreement. 

While proposing a prenup isn’t most people’s idea of a romantic gesture, entering a marriage with a full understanding of your spouse’s financial circumstances could prevent unpleasant surprises later, and it can actually provide a wonderful way to start a marital relationship on solid and honest ground.

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Are There Limits to What a Prenup or Postnup Can Do?  

While prenups and postnups can be very useful, they have their limits. A nuptial agreement cannot set any stipulations or terms that violate North Carolina law or public policy. A nuptial agreement also cannot: 

  • Determine child custody 
  • Set child support payments 
  • Encourage divorce by offering financial or other incentives 
  • Delegate spousal responsibilities, such as caring for children or completing household chores. 

If you have questions about the validity of a nuptial agreement, you should contact a family law attorney immediately. 

How Can My Spouse and I Enter a Prenuptial or Postnuptial Agreement? 

North Carolina’s general statutes have a special section devoted to prenuptial and postnuptial agreements. This section is called the Uniform Prenuptial Agreement Act (UPAA). 

According to this act, a valid prenup or postnup must be: 

  • In writing
  • Entered into voluntarily by both spouses
  • Based on full disclosure of each spouse’s financial situation (including debts)

While not specifically required by the UPAA, we recommend that a prenup be signed in front of a notary. 

It’s important that your prenup clearly defines its terms and conditions. Vague or misleading language could result in disagreements and litigation later on. And, if your prenup or postnup contains unfair or illegal terms or conditions, the court might invalidate all or part of the agreement. While you can try to draft a prenup or postnup on your own, it’s typically in your best interest to consult an experienced family law attorney for help.  

Additionally, you and your fiancé or spouse cannot have the same prenup or postnup lawyer. A prenup lawyer can’t fairly represent two parties when they have potentially conflicting interests. While this might seem unnecessary or expensive, the cost of drafting a valid and binding prenup still might be significantly less than the cost of a contested divorce. 

How Nuptial Agreements Affect Divorce Cases in North Carolina 

Since property division is one of the most contentious issues during a divorce, a valid prenup or postnup can help expedite your divorce and reduce conflict. When you have a valid prenuptial agreement, you and your spouse should simply follow its terms, which can speed up the property division part of your divorce process and cut down on litigation costs. 

Before you file for divorce, it’s important to get a copy of your prenuptial or postnuptial agreement. Your attorney will need to review the agreement and make sure it’s valid. If the prenup appears invalid, it may be fully or partially set aside. If the prenup is valid, however, the court must follow its terms.

Contact Myers Law Firm If You Need Help with a Prenuptial or Postnuptial Agreement 

If you have questions about drafting a prenuptial or postnuptial agreement, or about how an existing nuptial agreement will affect your divorce case, the attorneys at Myers Law Firm are here to help. We can answer any questions you may have and help you find affordable, efficient legal solutions that meet your needs. 

While we pride ourselves in handling divorce issues peaceably and with compassion, we won’t hesitate to fight aggressively if needed to protect your rights. To schedule your initial consultation, please call our Charlotte office toll-free at 1-888-376-ATTY (2889) or contact us online using our online contact form. 

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

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