North Carolina law allows a married couple to resolve all the issues surrounding the end of their marriage in a document called a “Separation Agreement.” This Agreement can cover child custody, child support, alimony (or waiver of alimony and property settlement. A separation agreement usually is obtained faster, costs much less and created less animosity than a lawsuit.
Your separation agreement should cover the date of separation and continued living apart, a waiver of estate rights and the method in which you will be filing taxes and dividing up the tax liability or refunds. It should have a free-trader clause allowing the buying and selling of real property titled in your name without having your separated spouse having to sign anything.
Your child custody provisions will need to have two separate topics – legal custody, which is basically how the separated parents will make decisions regarding the major issues in a child’s life – medical, educational, religious, social and activities. There are usually clauses that regulate behavior towards each other and the children. Then physical custody is addressed, the schedule of custody and/or visitation periods, including overnights, holidays and summer vacation. Custody agreements can have protections or limitations on certain actions while the child is with one or both parents…if the parties agree on them.
Remember, this is an agreement, if you do not agree, one of you will not sign the agreement and you must file a lawsuit to resolve the outstanding issues. Therefore, make sure your proposals are within reason.
Child support provisions will include the following: the amount paid (which can be calculated by the NC child support guidelines or just agreed to by the parties), medical insurance and co-pays (usually a pro-rated percentage based on incomes,) termination of the obligation (under what circumstances and when,) tax deductions for the children and who gets the earned income credit for day care costs.
The alimony section of your agreement will provide for alimony or waive it. If alimony is provided, the topics addressed include; the amount, the term, termination (death of payor, death of payee, cohabitation of payee and re-marriage of payee or a certain date.)
Generally, all property obtained through marital effort during the marriage is divided equitably after separation. This applies to all the following: real estate, motor vehicles, bank accounts, retirement accounts, investment accounts, personal property –art, collectibles, jewelry, household goods and furnishings and debt. An equitable distribution does not necessarily mean equal. In addition you may be unable to divide everything exactly evenly (1/2 to each person) so a distributive settlement, payment of monies from one party to the other may be necessary to create the equitable distribution.
Online versus an attorney
A Separation Agreement is personal to the married couple and should be drafted individually; online Agreements may be free or cost very little, however, there are many problems with online agreements such as:
1. The law cited may be wrong or even the law of a different state.
2. Such an agreement may contain provisions that are illegal in North Carolina or use terminology that is not used here or may contain provisions that are unnecessary. Likewise, such agreements may lack language or provisions that would be necessary in a complete agreement o to be valid in this state.
Why an agreement?
A Separation Agreement must be agreed to. In fact, this is the requirement that makes these documents popular…it is the separated couple that makes the decisions about what goes into the agreement rather than a judge who decides the various issues after one or more trials and after knowing the parties and their circumstances for a few hours or days.
Enforcing your separation agreement
Separation Agreements are enforceable via a lawsuit called “Specific Performance.” One must show:
1. a valid Separation Agreement
2. The complaining party must have complied with all his or her obligations under the agreement.
3. a violation of the agreement
4. The offending party is able to comply
If these prerequisites are met, a Judge will order the agreement to be enforced. Further violations will subject the offending party to a Contempt Motion. The costs of the suit, including attorneys’ fees are usually awarded the prevailing complaining party.
You do not have to wait a year after separation to start negotiating a Separation Agreement. In fact, in many cases parties start the discussions before separation. It is advisable to consult with an experienced family law attorney to discuss the issues involved in your case prior to making any decisions. The family law attorneys of Weaver, Bennett & Bland are knowledgeable and well-equipped to handle your Separation Agreement needs whether you are in Charlotte, Matthews, Monroe, Waxhaw or points in between.