What is a separation agreement and what makes an agreement into a separation agreement? How is it different from a court order? What is a legal separation?
The relevant North Carolina statutes are located at G.S. § 52-10.1.
While G.S. § 52-10 allows spouses to contract about property rights at any time during marriage (see our article on postnuptial and postmarital agreements). § 52-10.1 authorizes spouses to enter into separation agreements not inconsistent with public policy, provided that the agreement is in writing and acknowledged by both parties in front of a certifying officer.
Quite simply, a legal separation agreement is a contract between spouses that provides for the resolution and settlement of issues arising out of the marriage. A separation agreement, to be valid, must be executed while the parties are separated or planning to immediately separate.
Separation agreements are not court orders. This an important point for many reasons, but since they arise by negotiations between spouses and not as a result of court litigation, they generally are not enforceable by the contempt powers of the court in the way a normal court order would be.
Also, unlike court orders… which under some circumstances may be modifiable… a separation agreement must be modified in writing and with consent of both parties. Separation agreements are favored in North Carolina because they allow spouses to reach mutually acceptable settlement of their financial affairs.
A legal separation in North Carolina has no statutory definition, but is generally means a separation that occurs with a separation agreement or with the entry of a divorce from bed and board.
Like premarital agreements, a legal separation agreement may be attacked. The basic ways to attack a separation agreement is to argue such legal theories as duress, and fraud. However, it is generally difficult to get a separation agreement invalidated under North Carolina law.
Family law attorney Scott Allen negotiates and litigates issues in separation agreements and has over seventeen years of experience. If you have questions or need assistance call him at (919) 863-4183 or email at firstname.lastname@example.org.