A separation agreement is a contract. Under North Carolina law, the separation agreement has to be in writing and signed by both parties in front of a notary public. The relevant part of the statute reads:
52-10.1. Separation agreements. Any married couple is hereby authorized to execute a separation agreement not inconsistent with public policy which shall be legal, valid, and binding in all respects; provided, that the separation agreement must be in writing and acknowledged by both parties before a certifying officer as defined in G.S. 52-10(b). Such certifying officer must not be a party to the contract.
An important point is that if these requirements are not met then there is no separation agreement. For example, a promise made in an email from one spouse to the other is not enforceable as a separation agreement.
What may a separation agreement cover? Typically, the agreement covers four main issues and then addresses a series of waivers. The four substantive issues that most agreement addresses are:
- child custody – joint and legal custody and schedules
- child support – amount, payment dues dates, health insurance
- alimony/spousal support – amount and termination provisions
- property and equitable distribution – assets, debts, and distribution
The waivers in a typical separation agreement are:
- waiver of estate rights and claims
- releases of other claims between the parties (and sometimes third parties)
- often there is a waiver of further financial disclosures
Those are the basics.
The next step…
Separation agreements can be very complicated or relatively simple, depending on the circumstances of the parties.
Why would you choose a separation agreement? First, if successfully negotiated it gives the parties the decision making. If a judge decides the judge has that power. Second, it is less expensive than litigation. Third, it is a private document and the separation agreement is typically not made part of a public record or database.
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