In North Carolina there is no such thing as 'legal separation'.
North Carolina simply requires a married couple separate and only one spouse must have the intention to divorce. The couple must be separated for one year and one day, living in separate locations, prior to finalizing their divorce. During a period of separation the spouses may determine certain issues relating to child support, custody, alimony and other martial issues. If a couple chooses to determine these issues, they can use the Separation Agreement as the terms of their divorce.
A Separation Agreement, known also as a 'property settlement' agreement or 'marital separation' agreement is a privately written, legally binding contract which outlines each spouse's right, and marital settlement issues between spouses who have already separated or who intend to separate and divorce. If the separation is considered a 'trial separation' and a divorce is not necessarily planned, the separation agreement is still considered to be legally binding.
A Separation Agreement can resolve any marital issue the couple is willing to agree on, such as; child custody, child support and visitation, property division, alimony, future earnings like pension and 401k plans, debt, all types of insurance, inheritance, a child or children's education, religion, types of discipline to be used, and intimate spousal relationships after separation and prior to divorce.
Benefits of a Separation Agreement:
- Negotiation - Spouses have the flexibility to consider each issue thoroughly, negotiate the issue and then work cooperatively to resolve any disagreements. The spouses can be more specific in negotiating a Separation Agreement typically, then trying to specify conditions in a court with a judge.
- Privacy - Court documents are 'Public Documents', privately negotiated separation agreements are private and cannot be made public.
- Expense - Typically the cost to negotiate and draft a Separation Agreement is less expensive than going to court, which is defined as 'litigation'. Court is time consuming and more legal expenses are incurred.
Once a Separation Agreement is signed by both spouses and notarized, it is binding, unless the terms of the Agreement are unconscionable, or is a result of fraud, duress or coercion. North Carolina courts are most likely to accept the terms as written. The exception is when a child or children are involved. No Agreement between the parties can bind the North Carolina Court in regards to child support, custody, parental visitation rights, or the education of a child.
At Schulz Stephenson Law we advise you to seek legal counsel when considering a separation agreement and allow a lawyer to write your Separation Agreement. If you are considering a separation, please call for your consultation today.