A separation agreement is a formal document that details what each party in a divorce will receive when dividing property and assets in the event of a permanent separation and possible divorce. It is a type of contract and can be legally binding on the parties.
A separation agreement ordinarily addresses issues like:
- Will there be Post Separation Support (PSS) and alimony?
- How are marital assets divided?
- How will any debt be divided up?
- Is child support to be provided?
- Are the parents going to share custody?
- Who stays in the home?
- What are the terms of child visitation?
- How are retirement accounts, IRA, and 401K divided?
It is helpful for a separation agreement to be developed by a family law attorney to ensure that it complies with the NC Divorce Laws.
Online legal forms tend to be problematic and may lead to severe permanent adverse consequences.
Properly prepared separation agreements also help establish what to do if one of the parties decides not to go through with getting a divorce, filing for divorce, or the divorce proceedings once a Complaint for Divorce is filed.
As soon as the couple is separated, they ordinarily work out a plan to start to pay their own bills. This means that when deciding who gets what in a separation agreement, it is important to consider both partners’ income levels and their respective expenses.
The bottom line is this… unless the couple decides to cohabit again after separation, there is a process of closing joint accounts and distributing assets that are part of the “marital estate.”
When do people sign separation agreements?
People generally sign a separation agreement when they are considering divorcing or have already agreed to get divorced but want to formalize their division of assets and property before the divorce is finalized.
A separation agreement may therefore establish all the terms and conditions of the eventual divorce; after a year of legal separation, assuming the separation agreement covers things like support, custody, and equitable distribution, all that may need to be filed is a Complaint for Divorce.
What is separation?
There are different kinds of separation. The partners separate to think things through and find out how they feel about each other. They still keep in touch but it’s mainly just as friends. Sometimes people decide to live together for a while first before making any decisions about their relationship. This is called a trial separation.
The other kind of separation happens when the partners don’t want to live together anymore for whatever reason. A “legal separation” is one where the parties no longer reside in the same household and intend to permanently remain separated.
By signing an agreement about what will happen with their money and belongings, the parties can avoid hard feelings and legal disputes over money.
What is a legal separation?
A separation or legal separation is when two people who have married live apart from one another while remaining married. A legal separation in North Carolina is when at least one of the parties intends to dissolve their marriage and to live apart (in separate residences), waiting for one year before filing for divorce.
The key is that at least one party to the marriage intends to remain separated. Divorce lawyers tend to refer to North Carolina as a “no-fault” divorce state. That means filing for divorce does not require setting forth grounds or citing irreconcilable differences.
Furthermore, both parties do not have to agree to get divorced. That means one party cannot hold up the proceedings by saying, “I do not consent to the divorce.” While it may take time to resolve financial issues through litigation, once the legal terms are meant for the period of legal separation, one party of a marriage can force a divorce in North Carolina.
If separation is just a trial period before deciding whether to get a divorce or to remain permanently separated, it may not be deemed a legal separation.
Under the NC Divorce laws, the parties must be legally separated for a period of one year before the court will grant a divorce even if there are no children or any other issues involved.
What are the issues decided during separation?
The usual issues in separation involve custody and access to children, support payments for children or former spouses, division of property, and financial disclosure. Legal advice involving family law matters is regularly dealt with in detail within a legal document often called a separation agreement.
Separation agreements are not required; but, they can be very helpful. Separation agreements also allow for the possibility of privacy. They are a type of contract between the parties that, unless a dispute arises, serve as a way to avoid unnecessary litigation in family court in Charlotte.
A separation agreement usually deals also with PSS – Post Separation Support, support for children, custody and access matters, division of property, and spousal support also known as “alimony.” There are financial consequences involved in the separation, it is strongly recommended the parties consult with an experienced Charlotte family law attorney.
It is our professional opinion issues involving PSS, equitable distribution, etc. should be dealt with by both parties in consultation with their lawyers. Lawyers are not required for divorce. We just think, given the consequences of a mistake, it makes sense to seek the guidance of a divorce lawyer.
A separation agreement may operate as the full set of arrangements between spouses about their separation, including dealing with custody and access to children, the division of property, and financial support for either spouse or children under 18 (if they are still dependants).
If spouses want to live apart while still remaining married, they can enter into a legally binding written agreement to confirm the intent of their arrangement.
If you are considering separation, a well-drafted separation agreement can help resolve questions about custody and support of children, child and spousal support, division of property, and other financial matters. It is a good idea to have a lawyer review the agreement before you sign it, just in case there are any problems or possible misunderstandings.
A trial separation is a period of time where you and your spouse live apart with the intention of seeing if living apart leads to further problems or issues in your marriage. It can be helpful to give yourselves time and space away from one another to decide whether you want to continue with the relationship or end it.
During this time, you do not have to make a decision about anything. If you decide that you do not want to remain married, then your trial separation will end and you can agree that it is time for divorce proceedings to begin.
The length of time needed for a separation varies from person to person and couple to couple. Some couples may need only one month or less; others may need several months or more to determine whether they want to stay married.
Generally, a trial separation is considered short-term and not long-term (i.e., it usually lasts no longer than six months). However, some couples who are experiencing serious marital problems that may lead to divorce choose to use their separation as a long-term solution to their problems.
This is referred to as a “trial divorce” because it allows spouses time and space away from each other to see if marriage counseling or another intervention can save their marriage.
To create a trial separation, you and your spouse may agree on the length of time for your separation as well as what financial and living arrangements will be put in place during your separation. A lot depends on your individual circumstances and personal preferences.
For example, if you and your spouse agree to a one-month trial separation, you may choose to each stay in separate homes or apartments for the month. Or, you may choose to have only one spouse move out temporarily while the other remains at home. You can even create an interim arrangement where you alternate between living with each spouse.
Additionally, it is helpful to determine who will pay for the separation, what financial arrangements will be put in place during your trial separation (i.e., if one spouse drops health insurance coverage for both spouses or stops paying the mortgage), and any other living or financial arrangements that will be made during your separation.
As with any type of arrangement you make, it is good to put your trial separation agreement in writing so there are no misunderstandings or confusion later on.
When you have decided on the length of time for your trial separation and have created an interim arrangement, it can help to set up a definite date where you will reevaluate your circumstances and make a final decision about staying married or ending your marriage.
For some couples, it may be a good idea to set up a plan where you will visit with each other on a regular basis (i.e., every week) so that you can re-connect and keep communication open and flowing. You can also agree to attend marriage counseling sessions to try to reconnect and grow closer while apart.
However, if you feel your marriage is not worth saving and the time apart only makes your feelings of unhappiness stronger, then do not set up a reevaluation date or plan. Instead, allow enough time for both of you to be certain about your decision before filing for divorce.
Having a trial separation can be beneficial for some couples who need time away from each other to decide whether they want to stay married or end their marriage. A trial separation allows spouses time and space away from one another without the pressure of making a final decision about how to move forward with their lives.
However, some couples who are experiencing serious problems in their marriages or simply do not want to remain married assume having a trial separation will give them enough time apart to help overcome their marital issues.
This may be referred to as a “trial divorce” because it allows spouses time and space away from each other without the responsibilities of marriage (i.e., such as health insurance and what happens to the family home) to see if their marital problems can be resolved or if they want to get divorced.
For many couples, having a trial separation is the first step toward divorce; however, it can also signal that your marriage might be worth saving. While there are no guarantees, you may find clarity in your feelings and discover your marital problems can be resolved after time apart.
Pros and cons of divorce and separation
Divorce and separation are two competing options when an unhappy couple decides they want to separate. There are many factors that come into play when determining which one will be best for each individual situation, each person’s desires, and the well-being of their children (if they have any).
There are some benefits that both divorce and separation offer, such as freedom, empowering oneself to make his or her own decisions, bettering one’s life and the lives of their children (if they have any), etc.
There are also drawbacks to both divorce and separation; however, it is important to note that in some situations, these downsides may be outweighed by the benefits of the divorce or separation.
In some cases, it may be deemed necessary for a couple to separate in order to determine whether they want to work on their relationship or end it altogether. If a couple decides that they would like to stay together and try to work out their issues, then separation could be very beneficial.
A couple that is considering divorce should also weigh the possible consequences of this choice before they ultimately decide to go through with it.
Divorce can have many positive effects on a person’s life, as well as their children (if they have any). It allows each spouse to make their own decisions, be independent, and enjoy the benefits of being single. In cases where abuse is present, divorce can provide a safe way out for all parties involved.
In some situations, one spouse may have been forced to stay in an unhappy marriage for financial reasons. In such cases, after a divorce, they are able to get back on their feet and start a new, happier chapter in their life.
Once a couple gets divorced, each party has an opportunity to pursue other options that could lead them to a more successful financial future.
Divorce can also have many negative effects on an individual’s life and their children; divorce can be especially difficult for the whole family. To adjust to their new living situation and separation from both parents, it is common for children to experience anxiety or depression at some point in time.
After a divorce, children may feel as if they are responsible for their parent’s happiness, which can lead to other issues down the road.
Another drawback of divorce is that it can be very isolating for an individual. After a divorce, one party may find themselves living alone, which could take time to adjust to. This could make it difficult for them to meet new people or build new relationships.