When And Why Separation Agreements Make Sense

Separation agreements are contracts in which the parties can resolve issues such as child custody, child support, spousal support and equitable distribution outside of court by agreement. Couples can generally contract to anything as long as it is not illegal. Parties cannot contract to be divorced. Only a court can enter a divorce judgment.

Separation agreements must be in writing and signed by both parties before a notary (not necessarily the same notary) to be enforceable. However, separation agreements are not court orders, and their enforcement and modification options are governed generally by contract law.

Keep in mind that any custody agreement can always be modified by a court if the court finds the same not to be in the best interest of the minor child. But support and property division provisions are generally nonmodifiable by the court, though they may be modified with the consent of both parties, as long as the modification is in writing, and signed by both parties before a notary.

When An Agreement Is Signed

Separation agreements are signed when the parties are going to separate or have already separated, but before they receive their absolute divorce judgment. If you and your spouse are going through a trial separation, these contracts can be useful tools to ensure everyone understands what is expected, as well as their rights and responsibilities during the process.

Benefits Of A Separation Agreement

Control: Because separation agreements are contracts, no one can force either you or your spouse to sign it. A separation agreement is not an enforceable document until both parties have signed it before a notary. Therefore, because this is a voluntary, contractual process, you maintain some control as to the end result of your disputes rather than submitting your issues to a judge to determine.

Privacy: The negotiations and resulting contract are private. You do not have to disclose the contents of either to anyone. When you participate in litigation, all court proceedings are open to the public and any resulting order is made part of a permanent legal file available for the public to inspect, should anyone choose.

Time and cost savings: If both parties have an understanding and agreement regarding how they want their issues resolved in the contract, this is an efficient process in which each party maintains some level of control. In litigation, the court controls the timing of your matter being heard and resolved. Even agreeing on a few matters in a separation agreement will save time in the litigation process and allow all parties to focus resources on the remaining matters.

Important Factors To Keep In Mind

Once you sign a separation agreement it is difficult if not impossible to modify it. That is why seeking appropriate counsel and having an attorney draft the agreement is of the utmost importance. Before you sign ANYTHING, take the agreement to a lawyer to go over with you what the draft agreement means to you.

Did You Know?

  • A separation agreement does not bar certain claims your spouse can bring against third parties, such as an alienation of affection lawsuit. Alienation of affection refers to a valid marriage with some level of love and affection that was minimized and diminished due to the wrongful acts of a third party. In an alienation of affection suit, a sexual relationship between the spouse and the third party does not have to be proven.
  • Also, and in the event you have an affair with someone while you are married, your spouse can sue your partner for "criminal conversation." Criminal conversation is a legal term for a third party having sex with someone else's spouse.
  • Some lawyers insert waivers in separation agreements in an attempt to bar third-party claims for alienation of affection and criminal conversation. However, North Carolina Courts of Appeal have said that these waivers do not bar claims against third parties.

Learn About Your Options For Resolving Disputes

For more information about legal separation, call Ellis Family Law at 866-771-6159 or complete our online contact form to schedule a meeting.

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