Core considerations in drafting a separation agreement

In order to get an absolute divorce in North Carolina, you and your spouse must be separated for at least one year. In the eyes of the law, legal separation commences on the day that both members of the couple take up separate residences. Once the separation requirement has been fulfilled, the couple may proceed with the divorce proceedings.

If a couple is in mutual agreement about parting ways and is able to settle on the terms of their divorce themselves, they can avoid litigation—which can often be emotionally and financially draining—by instead creating a separation agreement. In this post, we examine some core considerations of such an agreement.

What is a separation agreement?

A separation agreement is a contract between you and your spouse. You can include in this agreement any terms that you wish. You can settle on terms affecting your immediate needs—such as how to divide the custody of your children, or who retains the family car. You can also stipulate impacts on future investments—such as vested pensions or life insurance policies.

Can we make the agreement ourselves?

Any couple can make a separation agreement themselves—a lawyer does not need to be involved. Each spouse must sign the agreement, and it must be notarized in order for it to be enforceable.

However, be aware that if you sign a separation agreement, the court will be unlikely to set it aside if you want to amend it in the future. You will be stuck with the terms you lay out for the rest of your lives, so you want to be sure you’ve thought through every possible consideration. If your agreement deals with things like alimony, child support or child custody, you may want to consult an attorney who’s experienced in these areas before you enter into an agreement that’s going to affect you for years to come.

Even if you decide to draft the agreement yourself, it’s a good idea to have an attorney review it before you sign, to make sure no critical area has been overlooked and that the terms serve your best interest. This option can save you some money and ensures you’re protected.

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