What is a legal separation?
Did you know a legal separation does not exist in North Carolina? You are legally separated when you or your spouse has moved from the marital residence with the intent to discontinue the marital relationship.
What is a Separation Agreement?
This is a document which can resolve the issues of custody, child support, alimony (or waiver thereof) and property settlement. It can be negotiated immediately before separation or after. It is wise to start the discussions well before you can file for an absolute divorce.
What issues can be resolved in a Separation Agreement?
The most common issues are Child Custody, Child Support, Post-Separation Support, Alimony, Waiver of Post-Separation Support, Property Settlement, Debt Distribution, Taxes, and Estate Waivers.
Can I do my own Agreement?
Yes, however this may not be a wise decision. Utilizing an online separation agreement or using a friend’s agreement as a “go-by” can cause numerous problems. Using terms and referring to statutes that do not exist in this state, including unnecessary paragraphs or forgetting to deal with a topic can cause huge trouble and expense later. Seeking the assistance of an experienced family law attorney is a good idea in drafting or reviewing proposed agreements.
Can I get a separation agreement online?
Separation Agreements have to follow certain statutory requirements. If these are met, you can prepare your own agreement or utilize one from an online service. However there are numerous pitfalls associated with these options; these include but are not limited to the following: you may not include a resolution to all the issues that are normally covered. You may waive a right you do not know you have, you may include a provision that is not allowed in North Carolina, you may use the wrong law and you may be misapplying the law and procedure costing yourself money.
Do we have to follow the law (do what a judge would do) in an Agreement?
No. A Separation Agreement is agreed upon by the parties and as long as the terms do not create a crime or go against public policy, the terms of an agreement can be tailored to the needs and desires of the parties. Parents do not have to follow the child support guidelines and can regulate custody any way they wish. Property can be divided as the parties’ desire. It is wide open for the parties to be creative.
How is a Separation Agreement enforced?
Separation Agreements are enforceable via a lawsuit called “Specific Performance.” One must show:
- a valid Separation Agreement
- The complaining party must have complied with all his or her obligations under the agreement.
- a violation of the agreement
- The offending party is able to comply
If these prerequisites are met, a Judge will order the agreement to be enforced. Further violations will subject the offending party to a Contempt Motion. The costs of the suit, including attorneys’ fees are usually awarded the prevailing complaining party.
What happens if my spouse will not sign a Separation Agreement?
You will more than likely file, or have filed against you, a lawsuit for the claims which are at issue – custody, child support, alimony and equitable distribution (property settlement).
Contact our Family Law attorneys at Weaver, Bennett & Bland today if you have questions about, or need assistance with, your separation agreement.