Separation Agreements in North Carolina: What You Need to Know
- Separation Agreements in North Carolina
- What Is a Separation Agreement?
- Who Can Enter a Separation Agreement?
- What Is the Difference Between Separation and Divorce?
- What Are the Main Advantages of Signing a Separation Agreement?
- Can a Separation Agreement Be Modified or Terminated?
- Can One Attorney Represent Both Spouses When Drafting a Separation Agreement?
- What Happens if My Spouse Refuses to Comply With the Separation Agreement?
- What Is the Difference Between a Separation Agreement and a Consent Order (and Which Should I Choose)?
- What Happens if I Get Back Together With My Spouse After Signing a Separation Agreement (but Before Divorce)?
- What Happens to the Separation Agreement After a Divorce Is Finalized?
- Need Help With a North Carolina Separation Agreement? Talk With an Experienced Attorney
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?
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?
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.
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)?
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.
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?
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.
The content provided here is for informational purposes only and should not be construed as legal advice on any subject.