People often assume a separation agreement is required in order to be legally separated. This is not correct. The law is very specific on the definition of legal separation. In order to be legally separated, a party must be physically separated with at least one spouse having the intent to end the martial relationship. In North Carolina, a couple may be legally separated without entering into a separation agreement.
While not required, a well drafted separation agreement can provide a number of benefits.
First, a separation agreement can address all matters related to a divorce including alimony, property division, child custody, child support, and a waiver of claims against third parties. Rather than leaving the decision to a Court, a couple can negotiate almost any term which is not against public policy.
Second, a separation agreement allows for flexibility regarding disclosure of terms. It can be a confidential contract or it can be incorporated into a divorce. If unincorporated, the terms of the separation agreement remain confidential. For some, confidentiality of terms regarding asset division, alimony and child support are preferred. If incorporated, the separation agreement is enforceable through the powers of the Court.
Third, a separation agreement can be substantially cheaper in attorney’s fees than litigation of various claims in court. Once signed, a separation agreement becomes a binding contract which negates the need for future litigation on the matters included in the agreement.
Fourth, entering into a separation agreement can be must less stressful and hostile than formal litigation. This can be especially beneficial when parties have children in common as there will be a need to co-parent following separation and divorce.
Contact Cristina Quantock if you considering a divorce and want to make sure you are prepared.