First, what is a separation agreement? It is a contract between a married couple intending to separate and divorce settling the issues involved with thed divorce, mostly financial but also sometimes issues involving their children. It is not required in North Carolina that a couple have one.    

    Disclaimer: This section is about the value of a separation agreement for couples who have settled the matters of the divorce. Everyone's situation is different, and we highly recommend you consult with an attorney if you have any questions about these types of issues in your marriage, whether you have resolved them or not. You may have rights or obligations regarding these issues that you are not aware of. The purpose of this section is to deal with those issues after they are settled, not settling them or determining if they are issues.

    Which couples should use a separation agreement? Couples where there is property that needs to be divided or the couple has children, or the parties have agreed that one of them should receive post-separation support (alimony), a separation agreement can help you avoid spending time and money you don't want to, both before and after the divorce.

    What are the benefits of having a separation agreement? One benefit of having a separation agreement in place is that people take signing it seriously. The act of signing carries weight with people, and those who might be willing to repudiate an agreement they have just agreed to are more likely to adhere to a contract they have signed.

    Another benefit is that seeing the agreement in writing sometimes allows the couple to see the big picture and helps them make more accurate decisions about what is important to them in dealing with the issues incidental to the divorce. And sometimes, our attorney reviewing the terms of the agreement identifies issues that you had not anticipated. You can then address them before they become a problem. For example, our questionnaire asks about how taxes are to be filed for the current year, something that many couples don't consider unless it's tax season.

    The separation agreement also contains a lot of "boilerplate." This means there are numerous standard clauses covering simple matters, such as inheritance during the separation period, which are unlikely to arise. Still, if they do, you will be glad you have the agreement in place.

    But the best thing about a separation agreement is that it makes your agreement enforceable in court. Without a separation agreement, any agreement the couple reaches is significantly more challenging to enforce. An oral contract is enforceable, but proving the terms you agreed to without written proof is much more difficult. The law states that the only evidence of a real estate agreement allowed in court is written evidence.

    Note, however, that regarding property, if the couple completely transfers all their property, such as vehicles, houses, and bank accounts, to each other before the divorce, they can eliminate the need for any property settlement.  Though do not forget that while it is easy to transfer title to automobiles and houses, it is NOT easy to transfer the debt. Suppose the title of one of these types of properties is transferred to one of the parties, but both parties signed the loan paperwork. In that case, the lender can sue for payment from the now non-owning party, even though they no longer own the property.

    It is also important to point out that if couples have not resolved issues related to alimony and property settlement, and they want to try those issues before a judge, they must do so before the divorce is complete. Once the divorce is finalized, a judge will not allow either party to bring a suit requesting post-separation support or Equitable Distribution.

    Child issues are different. Either party can ask a judge at any time to adjudicate the problems that affect minor children of the marriage. Even though this is the case, it is still worthwhile to have a separation agreement addressing those issues because whatever the parties agree to will function as the starting point for any modifications the judge makes to the agreement.

    One last thing regarding child support: You know your spouse better than we do. It is very common for a spouse to agree to pay support, but as soon as you mention signing something, they back off or stop cooperating with the divorce. You may decide that an oral promise to pay support, which they may later change their mind about, is better than trying to get something in writing that leads to you spending a lot more time and money to achieve your primary goal of getting a divorce. Or you may decide that you need to use the court system to make the support obligation legally enforceable.  Thougy, unlike property issues or alimony issues, you can ask the court to order child support at anytime, either before the divorce of after, without penalty.