When a Husband and Wife desire to separate without the courts intervention, they enter in a contract that is commonly referred to as a “Separation Agreement.”  A Separation Agreement may contain provisions for child custody and vistation, child support, property division and  alimony. A Separation Agreement is a contract in writing between husband and wife that is signed and notarized and becomes legally binding, even after the divorce is entered one year or so later. 

In North Carolina, parties must live separate and apart for one year in order to be granted a legal divorce. During that one year, it’s imperative to protect yourself from the actions and inactions of your estranged spouse, such as the creation of debts, the waste or selling of marital assets, and the need of financial support. 

When a separation is imminent, begin to consider entering a Separation Agreement, and ignore everything you hear from your family, friends, neighbors and co-workers and seek the advice of an attorney. 

 When choosing to resolve a marriage through negotiation of a Separation Agreement there are many issues that must be considered.  They include: the legal and physical custody of your children, the payment of child support and other related child expenses, such as healthcare, extraordinary expenses and activities, the amount and duration of alimony, the allocation of assets and debts, and finally the division of the household property. 

Inevitably, you may not agree on some issues and those issues can be referred to a mediator, or as a last resort through litigation. It is possible to reach a partial agreement and have those issues memorialized in a Separation Agreement. 

 A Separation Agreement is a binding contract that is typically the product of much negotiation and disclosure.  If you are presented with a Separation Agreement, please have it reviewed by a family law attorney prior to signing.  The difference between the words “may” and “shall” can prove to be very costly.

• Separation and Property Agreement – All Issues

• Separation and Property Settlement Agreement – No kids

Other Types of Marital Agreements

Trial Separation Agreement

A Trial Separation Agreement is for a finite period of time, usually 30-90 days. It is a desirable tool used when the parties are unsure if they want to permanently separate. The Trial Separation Agreement provides a temporary arrangement, or a set of rules and guidelines to live within this period of time. Trial separation is extremely helpful because it establishes expectations and sets boundaries. 

 Prenuptial Agreement

A Prenuptial Agreement is a contract between two parties that are about to wed. This is executed before the marriage and identifies what assets and debts will be classified as separate property and marital property, and how those assets and debts will be distributed in the event of divorce or death. Prenuptial Agreements typically specify whether or not post separation support or alimony will be paid by either party.

 Postnuptial Agreement

A Postnuptial Agreement is a contract between two married individuals that is executed after the marriage. The agreement identifies what assets and debts will be classified as separate property and marital property, and how those assets and debts will be distributed in the event of divorce or death. Alimony is likely to be addressed in terms of a complete waiver or in a specified amount and duration. Both Husband and Wife have the freedom to enter contracts relating to their legal rights that may be available to them, as long as the parties deem them appropriate and they are not illegal.