Separation Agreement in North Carolina
In no-fault divorce cases, North Carolina law requires the parties live “separate and apart” for at least one year. During that time, the parties may choose to sign a separation agreement providing for the division of the couples’ property and other interests. The law does not require such an agreement, but having one can facilitate the eventual divorce and prevent protracted litigation.
Child Custody in a Separation Agreement
If there are children, a North Carolina separation agreement may cover child custody and child support. The agreement may also provide for children beyond any legal support obligations, such as paying for their college education. We typically recommend that parents use a consent custody order for memorializing a custody agreement and support rather than including these issues in a separation agreement. Because a separation agreement is a contract and not a court order, custody and child support are not easily enforced in an agreement.
Equitable Distribution in a Separation Agreement
The agreement can also address basics like which spouse will continue to reside in the marital residence, whether the spouse who moves out is entitled to take any furniture or other household effects, payment of credit card or other debts, alimony for one spouse, and waiver of any marital rights under a will or trust.
North Carolina law provides for “equitable distribution”—roughly 50/50—of a couple’s marital assets. A separation agreement can provide for how property and debt will be divided between the parties. The agreement can provide for how retirement accounts, 401K accounts, pensions, and businesses are divided.
Alimony in a Separation Agreement
If the agreement provides for alimony, it should specify exact payments, frequency and duration. The agreement can also specify whether alimony terminates upon the recipient’s remarriage or the payor’s death.
Separation Agreement Terms
A separation agreement does not have to cover every item, but any unresolved matters may be the subject of a separate court action. During the one-year separation period, either spouse may petition a judge for a temporary order to determine child custody, child support, post-separation support or interim distribution of property.
A separation agreement is a private contract between spouses. If either spouse violates its terms, the other may bring civil suit for breach of contract. If the agreement is later incorporated into a judicial divorce decree, however, it becomes a court order punishable by contempt for noncompliance.
Because the separation agreement is a contract, each spouse should retain his or her own counsel to ensure they receive independent legal advice with no risk of a conflict of interest. Many lawyers will not represent both parties to a separation agreement for just that reason.
In order to be valid, a separation agreement must be written and signed by both parties in front of a notary. Separation agreements are difficult to set aside, so be sure you are in agreement before you sign.