Separation Agreement and
Property Settlement Agreement
The law firm of Tash & Kurtz, PLLC devotes its entire practice to family law matters in North Carolina. Our attorneys are Board Certified Specialists in Family Law and are committed to helping our clients in matters concerning divorce, alimony, postseparation support, child custody, child support, equitable distribution, and separation agreements.
In North Carolina, unlike many other states, there really is no such thing as a “legal separation.” However, in order to be divorced in this state, couples must be physically separated for one year. Separation agreements are not required in this state and therefore do not need to be filed with the courts. Still, it is wise to consult with an attorney when drafting a separation agreement, because once both parties sign it, it is considered a binding contract in the eyes of the law and could be used to formalize the division of property and to obtain orders for custody, visitation, child support and spousal support. The consequences for you and your family are quite serious. A competent attorney can help you determine whether a separation agreement is right for you.
A separation agreement is a contract between a husband and a wife, signed when they have agreed to live separate and apart in contemplation of a divorce. The agreement is designed to settle any asset, debt, alimony, child custody, visitation, child support, insurance and tax issues that may exist between them. Each agreement is unique and can address other issues such as: who will care for the family pet or what religion the child(ren) will practice. Most family lawyers will be able to provide a list of issues typically addressed in a separation agreement. During the negotiating process, it is essential to keep an open mind in order to reach the actual final settlement.
A separation agreement should set forth the respective rights and duties of husband and wife with respect to the custody of and access to children, support payments, distribution of property, and all other matters pertaining to the marital relationship. Although one attorney may ethically represent both parties in the negotiation and preparation of a separation agreement, it is suggested that each party having his or her own respective attorney would be preferable.
If you do not have a lawyer, and the separation agreement was drafted by your spouse, by your spouse's lawyer, or even by a mediator or lawyer/mediator who was hired by both spouses, you should always take any such agreement to your own individual lawyer to have it reviewed before you sign it. Once you and your spouse sign the agreement and have it notarized, it is binding. Unless the terms of the agreement are unconscionable, or the agreement itself is a result of fraud, coercion, or duress, the courts tend to accept the terms as written and will not usually set them aside.
A separation agreement must be voluntary; neither party can be forced or coerced to sign an agreement. It is important to understand that a separation agreement is not a court order and the court cannot force your spouse to comply with the agreement using its contempt powers. To ensure compliance with an agreement, you may, however, sue your spouse for breach of contract, specific performance, or for both, if he/she violates the terms of the separation agreement.
All that must be proven to the court is that the agreement was duly executed and acknowledged; that the spouses have in fact continued to live separate and apart during the period of the agreement; that the plaintiff has substantially complied with the terms of the separation agreement; and that the defendant has failed to comply. The court will specifically enforce the contract.
At Tash & Kurtz, PLLC, we keep our client’s interests at heart. Our goal is to create resolutions that can allow for healing, whether through litigation or through more affordable alternatives to litigation. If you need an attorney for a North Carolina divorce or other family law matter, please contact us.
For more information on Separation Agreements, please see our Separation Agreements Frequently Asked Questions.