In North Carolina, married couples can separate when one of the parties evidences an intent to separate, and physically separates from the other spouse. One spouse can also file a legal claim for a “divorce from bed and board” which is a court ordered legal separation.
North Carolina law requires that for a married couple to “separate”, only one spouse must have the intention to separate and end the marriage. 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 document which memorializes their agreement.
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 and visitation, child support, property division, alimony, future income 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, unless the parties agree to make it a part of the divorce judgment.
- Expense – Typically the cost to negotiate and draft a Separation Agreement is less expensive than going to court, where a Judge will make these decisions. Court is time consuming and more legal expenses are incurred.
- Control of Decisions- When parties resolve their matters by agreement, they can resolve each and every issue and hopefully will reach an outcome that is agreeable to both. This is not always the case when a Judge decides your matter.
Once a Separation Agreement is signed by both spouses and notarized, it is binding, unless the terms of the Agreement are unconscionable, or it is proven that the Agreement is the 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, although the courts are required to recognize the agreement of the parties, and in some cases give deference to those agreed-upon terms.
At Schulz Stephenson Law we advise you to seek legal counsel when considering a separation agreement, and allow us to prepare your agreement, and represent you in the process, or allow us to review the agreement that you have been presented with. If you are considering a separation, please call for your consultation today at (252) 728-7300.