Separation Agreements

I meet with a lot of clients interested in separation agreements. Many people are under the mistaken assumption that a separation agreement is necessary to establish the date the parties separated to start the clock running on the one-year separation requirement to get a divorce (See the page on divorce for more on this). However, this is not the case. A separation agreement would be evidence of the date of separation if either party disputes the actual date, but is not required. However, a separation agreement can be a valuable and cost-effective method of resolving issues arising from the marriage.

Basically, in a separation agreement, the parties can agree to virtually everything a court could do if the parties sued each other. The difference is that the cost is much lower, it takes less time, and you both know exactly what you are getting. By contrast, a lawsuit is much more expensive, can take much longer, and the outcome is left up to a judge. In a separation agreement, you and your spouse can agree on custody, child support, the education of your children, alimony, and property division.

Best of all, a separation agreement can be incorporated into your divorce judgment just as if the judge had ordered the terms of the agreement in a lawsuit. But it is important to remember that a separation agreement is merely a contract. That means that in order to be valid, it must be signed by both parties, and under North Carolina law, separation agreements must be notarized. If your spouse does not agree to the terms, and refuses to sign it, it is useless. That is why it is important to discuss all of the issues with your spouse before paying an attorney to draft an agreement. Otherwise, you are paying for something that gets you nothing. But don't be discouraged. Frequently, parties will disagree on issues initially, but can later reach a compromise that is acceptable to both. So even if your initial proposed agreement is unacceptable to your spouse, it can be revised to suit both of you before you both sign it. If you and your spouse cannot reach an agreement, then your only option is to file a lawsuit and have the courts or your attorney's resolve your differences.

So what do I need to do? - If you are considering a separation agreement, the first and most important thing you should do is talk to your spouse. Write down all of the terms and issues that you agree on before speaking with an attorney. This will make it less likely that your agreement will need to be revised. If you have all of your terms written down, it is easier for me to advise you, and I can usually begin working on your agreement right away. In some cases, you may not have talked to your spouse before you meet with an attorney. If this applies to you, then I still encourage you to right down the terms that you find acceptable. I can then advise you on your options, and you can then approach your spouse to see if he or she will agree to your terms. If they do, then you can come back with a new list of terms that you have agreed on. But again, it is important to remember that if you cannot agree on terms that either of you believe is non-negotiable, you may not be able to resolve your issues through a separation agreement.