A “Separation
Agreement” is the term most often used to describe a contract between
a husband and wife that resolves all issues arising out of the parties’
marriage, with the exception of the divorce itself. The parties can reach
agreements on such matters as the division of their marital assets and
debts, custody and support of their minor children, spousal support and
waiver of rights in the other spouse’s estate. There are many advantages
to resolving family law issues in a Separation Agreement, several of which
may include:
| Q |
Do I have to have a Separation Agreement to be “legally
separated”? |
| A |
North Carolina does not require a couple who is separating from
each other to sign a Separation Agreement; however, there are a
number of rights that arise out of marital relationship that continue
beyond the date of separation. It is a wise idea if there are marital
debts (joint or individual debts), minor children, support claims
or property involved for parties to consider resolving their issues
in a Separation Agreement. “Verbal agreements” between
the parties are not enforceable. |
| Q |
What kinds of provisions are included in a Separation
Agreement? |
| A |
Your Separation Agreement will be tailored to your family’s
specific circumstances; however, there are certain clauses which
are usually standard in Separation Agreements, they may include
the right for each spouse to live separate and apart from the other
spouse; mutual non-harassment or non-molestation provisions (i.e.,
not visiting the other spouse’s residence without expressed
permission or telephoning the other spouse); no amendments or changes
to the Agreement unless in writing and acknowledged by the parties;
mutual waiver and release of all claims and marital rights, etc.
Additionally, the Separation Agreement may address how marital assets
and debts will be divided between the parties, provide for spousal
support, health insurance, life insurance, how tax returns will
be filed and how other tax issues will be handled, custody, child
support, college education expenses for the children, etc. There
is no such thing as a form Separation Agreement and your Agreement
will depend on your particular case. Take a look at an example of
a Separation Agreement our firm prepared. |
| Q |
Can I simply go on the Internet and print out a form
Separation Agreement? Won’t this save me thousands of dollars? |
| A |
Separation Agreements are tailored to the individual case, and
one size doesn’t fit all. Your attorney should advise you
on what terms to include, how to divide the marital estate and address
other complicated legal issues. Additionally, in this “form”
agreement you could be waiving important marital rights. For example,
one unlucky lady we met had pulled off an Agreement from the Internet
and simply substituted her name and her husband’s name in
the blanks and signed it. It was only later when she came to our
office that she learned that she had waived her right to her husband’s
pension, which was worth a substantial amount of money. In her case,
she would have benefited greatly financially from hiring a family
law attorney to assist her in preparing the Separation Agreement.
By relying on Internet forms, you may end up being “penny
wise, but pound foolish.” |
| Q |
My spouse is being totally unreasonable and uncooperative.
Can I force my spouse to sign the Separation Agreement? |
| A |
No. The Separation Agreement is an “agreement” and
both parties have to sign the agreement voluntarily, without compulsion,
duress, or undue influence from the other spouse. If your spouse
is being unreasonable and uncooperative perhaps mediation or some
other dispute resolution technique can be helpful in resolving the
dispute. If you reach an agreement with your spouse in mediation,
negotiation or the collaborative law process, you can still reduce
your agreement to a Separation Agreement. |
| Q |
Will a Separation Agreement free me from paying joint
debts obligations? |
| A |
No. A Separation Agreement is a contract between spouses. Husband
and Wife are the only parties to the contract, and, thus, they are
the only parties bound to follow the Agreement. Third parties, such
as banks and credit card companies, are not parties to the contract.
Therefore, if Husband agrees to assume responsibility for the $10,000
joint Visa debt and he does not pay, then Visa can still come after
Wife for repayment of the joint debt. In that case, Wife could sue
Husband for breach of the Separation Agreement. However, for various
reasons, including the risk that Husband may file bankruptcy, it
is important that you have frank and open discussions with your
attorney about all joint debt obligations and ways to satisfy those
joint debt obligations as soon as possible as the Separation Agreement
may not provide Wife full-proof protection in the event Husband
does not pay the joint debt as required under the parties’
contract. |
| Q |
What if one party doesn’t comply with the Separation
Agreement, can a judge hold the non-complying party in contempt? |
| A |
No. Contempt of court is the willful failure to obey a court
order. A Separation Agreement is not a court order; it is a contract
and is enforceable just like any other contract. If a party violates
or “breaches” a provision of the Separation Agreement,
the other party may sue for breach of contract and a judge will
order the other party to comply with the Agreement. Additionally,
if there is an attorney’s fees provision in your Separation
Agreement, the judge will make the breaching party pay the non-breaching
party’s attorney’s fees. |
| Q |
Is a court bound by what we put in the Separation Agreement
about our children? |
| A |
No. The terms you include for child support, custody and visitation
can always be modified by the court. However, in the absence of
proof to the contrary there is a presumption that the terms concerning
the children in your agreement are fair, reasonable and necessary
for the best interest and welfare of the children. See Pataky v.
Pataky, ____ N.C. ____. |
| Q |
My Wife and I have reached an agreement on everything
and now we just need a lawyer to draft the document. Can one lawyer
represent both of us? |
| A |
No. Since Husband and Wife are technically “opposing”
parties in the agreement, it would be a conflict of interest for
one attorney to represent both parties. We will be happy to meet
with one spouse and prepare a Separation Agreement on behalf of
that one spouse. The other spouse should retain independent counsel
of her choosing to review the agreement in order to make sure that
her interests are protected, as we cannot provide legal advice to
the other spouse. |
| Q |
Now that my spouse and I have signed the Separation Agreement,
do I need a new Will? |
| A |
North Carolina's Probate Code invalidates certain portions of
wills which are made prior to a divorce. Following the signing of
a separation agreement or divorce, you will probably need a new
will. You may also want to revise your will prior to your absolute
divorce. |
