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.
If there are children, a North Carolina separation agreement may cover child custody, support and visitation for the one-year period of the separation. 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. The agreement may also provide for children beyond any legal support obligations, such as paying for their college education.
In a contested divorce, North Carolina law provides for “equitable distribution”—roughly 50/50—of a couple’s marital assets. A separation agreement can spell out a different percentage, which may be especially important if there are assets that defy easy division, such as a business operated by one spouse.
If the agreement provides for alimony, it should specify exact payments, frequency and duration. Alimony may be deductible for the payor and taxable for the recipient, so it’s important to clearly spell out these terms. The agreement can also specify whether alimony terminates upon the recipient’s remarriage or the payor’s death.
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 or equitable 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.
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