What Could Void a Post-Separation Agreement?

In Separation & Divorce by Elizabeth Stephenson

When a couple separates with the intention of divorce in North Carolina, they must wait for an entire year before they can file for divorce. This year is a time of upheaval, as the couple must live in separate residences, figure out how the bills will continue to be paid, and figure out how child custody and visitation is going to work out.

An important tool that many couples use to reduce the impact of this turbulent time is a post-separation agreement. These agreements are legally binding contracts between separated, but married couples that may address property division, living arrangements, expenses, post-separation support, child support, contact, child custody, visitation, and how conflicts are to be resolved. This contract is designed to reduce fighting, provide peace of mind, and facilitate stability for everyone involved.

Unfortunately, post separation agreements are not all-powerful documents, as there are numerous ways in which a court may determine that the contract is partially or fully unenforceable. Some of the more common bases include the following scenarios:

  1. The parties reconcile. It is not uncommon for couples to reconcile during their separation period. Not only does this reset the clock if they later choose to divorce, but it also invalidates parts of a separation agreement.
  2. The contract is contrary to a public policy interest or contains an agreement that violates the law. For example, if spouses are not actually separated at the time the post-separation agreement is entered, then it is void.
  3. Technical defects, such as failure of all necessary parties to sign the document, or failure to get it properly notarized. A technically or procedurally invalid contract is completely unenforceable.
  4. Unfair provisions regarding child custody, visitation, and child support. A family law court always retains the jurisdiction to consider and modify child custody, visitation, and child support determinations. Therefore any contract provisions that are unfair regarding these important issues is subject to being overridden by a court.
  5. The agreement was obtain through fraud, duress, or coercion. Agreements must be voluntary, so impropriety by one spouse that causes (or forces) the other spouse into an agreement creates an unenforceable contract.
  6. The agreement is “unconscionable”. If a post-separation agreement is completely one-sided, and deprives one spouse of their legal rights to the other spouse’s benefit, then it is likely that a court will refuse to enforce the contract.

Contact New Direction Family Law

Post-separation agreements can help you attain stability during the year between your separation and divorce. However, it is also a legal contract that needs to be drafted carefully and must comply with the law. If you are interested in pursuing a separation agreement, contact New Direction Family Law. We are a family law firm that offers legal advice and representation regarding separations, divorces, and child custody issues. Our attorneys are smart, knowledgeable, and detail-oriented. Let us help you create a clear, enforceable post-separation agreement. Call New Direction Family Law at (919) 719-3470 to schedule an appointment, or contact us online at our website.