Resolving issues before divorce in North Carolina
Absent an order for Divorce from Bed and Board—a rarely issued, court ordered separation that is used in circumstances where one spouse is making the other spouse’s life burdensome and intolerable by acts of infidelity, substance abuse or other significant misconduct—there is no such thing as legal separation in North Carolina. When a married couple separates and at least one of them has the intention to divorce, the only requirement for divorce is physical separation for at least a year and a day. Before or during the period of separation, issues between the spouses can be resolved using a legal marriage separation agreement.
A separation agreement is a private, written, legally binding contract spelling out each spouse’s rights and settling issues between spouses who have or intend to separate and/or divorce. Even if a divorce is not planned, and the separation is a trial separation, a legal agreement between the spouses can be extremely valuable. A separation agreement is NOT a court order. It is a contract, and is therefore governed by contract law regarding its formation and breach.
A separation agreement can resolve any issue the couple is willing to agree upon, such as those involving—
Benefits of a separation agreement
There are many benefits for spouses willing to work out issues in a legal marriage separation agreement:
- Cost—The cost to negotiate and draft a separation agreement is much less expensive than litigation.
- Flexibility—Spouses have the freedom to negotiate each issue and find creative solutions. The spouses negotiating a separation agreement can specify conditions that a judge cannot.
- Privacy—Unlike court documents, a separation agreement is not a public record and the general public does not have access to the terms of your agreement without your consent.
- Time—A court trial can be a long, involved and time-consuming process.
Contact us at 919-783-9669 today to discover how we can help with your legal marriage separation questions.
Separation agreements can save a significant amount of time. Even if spouses can only agree on some of the issues and request that the court decide the others, the time and money saved is often well worth the effort.
Why you need an attorney for separation agreements
Separation agreements should be drafted by an attorney. The experienced attorneys at Haas Tharrington, P.A. can prepare a separation agreement for you, or review an agreement drafted by someone else.
If you do not have a lawyer and the separation agreement was drafted by your spouse, your spouse’s lawyer or even by a mediator or lawyer/mediator who was hired by both spouses, you should always take a draft of your separation agreement to an independent lawyer to have it reviewed before you sign it. Once you and your spouse sign and have the agreement notarized, it is binding. Unless the terms of the agreement are unconscionable, or the agreement itself is a result of fraud, coercion or duress, the courts tend to accept the terms as written. Attempting to have a separation agreement overturned is difficult, but not impossible.
What separation agreements covers
No agreement between the parties can bind the court in regards to support, custody, visitation rights, or the education of a child. However, a court will presume that the agreed-upon terms in your separation agreement were in the best interests of the child at the time the parties executed the agreement.
A separation agreement must be voluntary. Neither party can be forced or coerced to sign such an agreement. It is important to understand that a separation agreement is not a court order and the court will not force your spouse to comply with the agreement using the contempt powers of the court. To ensure compliance, you may sue your spouse for breach of contract if he/she violates the separation agreement. Contact the experienced family law attorneys of Haas Tharrington, P.A. to guide you through the legal process of drafting, reviewing and negotiating a separation agreement, or if you or your ex-spouse are currently in breach of a separation agreement.
For a new and innovative approach to separation and divorce where you have access to experts other than just attorneys, please visit our Green Divorce page, where we are proud to offer a collaborative and holistic model of non-litigation based resolution.
For most couples, divorce is the last outstanding issue after all other matters—like custody and property distribution—have been resolved by separation agreement. For information on how to handle the divorce—or actual severing of the agreement—see our Divorce page.