"4 Common Questions About Separation Agreements Answered"
Written by Bill Hunter, Prism Family Law Firm. Updated 04/20/2019
First, it is great that you are thinking ahead and may potentially work things out with your spouse directly prior to moving towards the route of litigation. When you rely on the court system for resolution on any of the issues that may accompany divorce- child custody, child support, alimony, equitable distribution, etc. – you are placing all decision making authority in the hands of a judge. When possible, keeping this power in your own hands will not only help you retain control over the resolution of your own issues, but can also save you many thousands of dollars in legal fees associated with litigating a highly contentious matter. Couples who are able to work through and negotiation a separation agreement that is agreeable to both parties also tend to have fewer hard feelings towards each other moving forward. Please see below for answers to some of the most common questions our Charlotte divorce lawyer is asked about separation agreements.
“Is a separation agreement required and do I need to file for separation?”
The answer to both of these questions is “no.” In North Carolina, you are not required to have a separation agreement, and you do not have to file anything to begin your separation. Separation begins at the point that the parties begin living under separate roofs with the intention to remain permanently separated. We do recommend maintaining documentation such as a lease, receipts for moving trucks, etc…in order to provide evidence of your actual date of separation, as this date will be very important for several divorce related matters. Also, you are not required to "file" your separation agreement once completed.
“Why do I need a separation agreement?”
A separation agreement is a great place to start when working towards creating a mutually agreeable resolution with your spouse on some or all aspects of your separation and divorce. A properly executed separation agreement is an enforceable contract and can cover the full range of divorce-related issues, including child custody, child support, alimony, and the division of property. Unfortunately, verbal promises between parties are not enforceable. Also, things often sour quickly between parties as time passes, emotions swirl, new dating interests pop up, and circumstances change. As such, memorializing an agreement into an enforceable contract while on good terms can be extremely beneficial for divorcing couples.
“How do I begin the process?”
The first step in creating a separation agreement is to come up with a list of items that need to be addressed in the agreement. The following are a few questions that may help you get started: Do you have minor children? Will you have joint custody or will one parent have primary custody? Will one party pay the other party child support? Will one spouse pay the other post-separation support and alimony? What assets did you acquire during your marriage? Are there certain assets or items of personal property that you wish to maintain possession of? Do you and your spouse own the marital residence? Will one of you continue to reside in the marital residence, or will it be sold? Are there retirement accounts that need to be divided? These are just a few of the many questions that may arise after a couple decides to separate.
Once you’ve thought through all issues you’d like to address in your separation agreement, you should begin prioritizing certain areas in preparation for negotiations. Working through a separation agreement will involve a good deal of give and take, and having a prioritized list will help determine which battles are worth fighting. Remember that a separation agreement may address all or just a few of the areas you and your spouse desire to address (i.e., you may reach agreement on the division of property and spousal support/alimony but not see eye to eye on child custody). A separation agreement is still a good idea in these scenarios as you can formalize the areas where agreement has been reached and move forward with litigating only the remaining issues that you can still not see eye to eye on.
Prism Family Law FIrm, © Copyright 2019.
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“Do I have to use a lawyer to draft my separation agreement?”
This answer to this question is no. There are many good samples of separation agreements online that may be a good starting point for do-it-yourselfers. However, there are several reasons why it likely makes sense to involve an attorney in the process. Unless you are fully aware of all of your potential rights resulting from your marriage, and fully understand the implications of all provisions that are both included and either deliberately or unintentionally left out, then it is a good idea to seek legal assistance. Separation agreements are complex documents that should be specifically catered to the individual needs of the parties to the agreement. As such, sample separation agreements found online should online be used as a starting point. Our divorce attorneys have a template, likely very similar to samples available online, that we use as a starting point with all separation agreements that we draft. That said, all of our agreements end up being very different from each other by the time they are completed due to the individual nature of each case and the need for specific language in certain situations, and the necessary insertion or deletion of key provisions on a case by case basis.
Our Charlotte family law and divorce lawyers often meet with clients who have made mistakes when creating a separation agreement on their own. These mistakes may take years to surface, and can be extraordinarily expensive to correct, if correctable at all. As most people are not well versed on the laws, regulations, and guidelines surrounding divorce and separation agreements, there are many pitfalls that you will not likely know better than to avoid. Common pitfalls we see include: creating an unenforceable agreement as a result of procedural or substantive issues; unknowingly waiving rights by not affirmatively asserting the rights or by misunderstanding key provisions; not understanding the implications of incorporating vs. not incorporating the agreement; and drafting vague, ambiguous, and/or conflicting provisions therefore making the provisions and document as a whole difficult to enforce.
An attorney can help walk you through common items addressed in a separation agreement, discuss important provisions that can help protect your interests, and explain the law surrounding the separation agreement itself and the matters addressed therein. An attorney will also be able to provide an opinion as to what would likely happen in court if certain matters are pressed to the point of litigation. Having a qualified opinion regarding likely court outcomes will provide an invaluable framework to use when approaching negotiations. Read more about why legal matters are not typically DIY projects.
Questions? Prism Family Law Firm can help. Our divorce lawyer serves clients in Charlotte, Huntersville, Mathews, Mint Hill, Concord, Mooresville, Davidson, and Harrisburg in Mecklenburg and Cabarrus counties, and is well versed on the laws and procedures involved in a wide range of divorce related matters. Prism can help with drafting, negotiating, and/or reviewing your separation agreement. Our divorce lawyer can also help guide you through the court process and litigate any claims for which you are unable to reach an amicable resolution. Contact Prism Family Law Firm at 704-412-1442.
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