The Essentials of a Separation Agreement

In Separation & Divorce by Elizabeth Stephenson

Separating from a spouse is naturally an uncertain time. You are moving on from a person that you have built a life with, who you have a shared and significant history with, and who you once loved deeply. While painful, there are a lot of plans that need to be made to ensure that the separation proceeds smoothly. One of the mechanisms that couples can utilize to ease and clarify this process is a separation agreement.

What is a Separation Agreement?

In order for a married couple to obtain a divorce in North Carolina, they must be separated for a year and one day. To be considered separated, they must be living in separate residents for that entire time and it must be the intent of at least one spouse to remain apart permanently. There is no legal requirement that the separation has to be recognized in writing. However, if the spouses are able to take a mature and productive approach, they can enter into an agreement.

A separation agreement is a legal contract between spouses that can encompass matters involving living arrangements, property division, child custody, insurance, college expenses, and support. There are numerous benefits to entering into an agreement. One is that an agreement is far more peaceful and amicable than the alternative. It prevents the energy and expense of fighting every single decision in a courtroom. In addition, separation agreements are a good way of ensuring that both spouses, and their children, are able to live and function in a somewhat predictable manner.

Elements of a Separation Agreement

Like other contracts, separation agreements must be in writing, signed by both spouses, and notarized. In addition, each spouse is encouraged to have their own attorney to represent their separate interests. Some of the essential elements of an agreement include:

  • Property division. In a divorce, the court equitably divides all marital property. This is generally all property acquired during the marriage, which may include the family home, investments, vehicles, and retirement benefits earned during the marriage. A separation agreement can preemptively identify and divide specific property between spouses. The more property that is agreed to at the outset can simplify the divorce proceedings later.
  • A separation agreement can identify and determine who is responsible for paying debts accumulated during the marriage, such as a mortgage, auto loan, credit cards, and student loans. Despite the separation, these are bills that need continued payments. An agreement can clarify this so that the loans do not go to collections. While this does not prevent the creditors from going after both spouses in the case of a default, but it does create an enforceable contract obligation between the spouses.
  • Child custody and support. Easily the most contested and significant for parents that are separating, the terms of child custody and support are both subject to separation agreements. This includes whom the children will live with, where they will live, and when. It is incredibly beneficial to children when there is such an agreement as it allows for consistency and stability during the separation period. In addition, a child support agreement can ensure that the children’s financial needs, college expenses, insurance, and medical expenses are still paid. The agreement can also determine who can claim the child as a dependent on their tax return.
  • A separation agreement will typically contain provisions providing for spousal support for a financially dependent spouse. This is to provide for that spouse’s living expenses for the duration of the separation. This is important as a dependent spouse has made sacrifices of education and career to maintain the household and should not be left destitute due to a separation.

Let New Direction Family Law Assist You

If you are considering separating from your spouse, or have already separated, please contact us. At New Direction Family Law, we understand that this is an incredibly difficult time for you and want to make sure that you are put in a position to end your relationship on your own terms and look toward the future. We have handled separations and divorces for over twenty years. Our team practices in Wake, Johnston, Lee, Harnett, Cumberland, Nash, Granville, Franklin, and Durham counties. Call our office today at (919) 719-3470 to schedule an initial consultation, or online at our website.