Legal Separation AgreementA Separation Agreement is a contract between a married couple that is linked to a planned separation of the parties, whether the parties have already separated at the time the Agreement is signed or if separation is imminent. Separation Agreements can include distribution of the parties’ property, relinquishment of marital rights, and may also include terms the parties have agreed upon regarding child custody and child support. It is important to note that a claim for child custody or support can always be filed with the Court despite having such terms in a Separation Agreement; however, the Court may consider what the parties decided privately in the Agreement when making its determination regarding child custody and child support. Parties can also agree to terms in a Separation Agreement regarding their children that would be otherwise be outside of the scope or jurisdiction of the Court, such as the manner in which a child’s college tuition/expenses will be paid in the future.

What makes a Separation Agreement legal?

In order for a Separation Agreement to be considered valid in the eyes of the law, there are three requirements that must be met:

  1. It is an agreement formed between two parties in a marital relationship who have decided to separate (and either already have separated or separate quickly after the agreement is signed);
  2. It must be negotiated fairly with full disclosure to both parties; and
  3. There cannot be any fraud, misrepresentation, coercion or undue influence.

Can a Separation Agreement be set aside?

In order to set aside a separation agreement, grounds must be shown that prove that one of the parties fraudulently induced the other to sign or that duress or undue influence were used to deny one party of the ability to exercise their own free will. Fraud is defined as deception by misrepresentation. Duress and undue influence arise from the actions of one party to alter the response of the other and to induce an ostensible consent.

Ratification is a defense to setting a Separation Agreement aside

The primary defense to setting aside a separation agreement, apart from disproving the required showings for fraud, duress or undue influence, is that the aggrieved party negates their claim by ratifying the contract through the acceptance of its terms and, primarily, by accepting the benefits granted through the agreement.

The case of Goodwin v. Goodwin, 357 NC 40 (2003) establishes that a victim, having accepted the benefits of the bargain without further duress, had ratified the agreement and could no longer set it aside. Thus, it is not just the acceptance of the benefits but the showing that the acceptance was done freely and willingly by the victim who was no longer under the influence of the other party that precluded her further claims.

In other words, you cannot freely and willingly accept benefits from a Separation Agreement and claim that it should be set aside at the same time. Once you have freely and willingly accepted benefits from the Agreement, you have in effect ratified the Agreement and established that it is valid.

Separation Agreements are in many cases a good way to privately settle marital issues when spouses have separated or when separation is imminent. It is important that Separation Agreements are well drafted and that you have the assistance of an experienced divorce attorney to ensure that your rights are protected and you do not enter blindly into an agreement. Call (919) 301-8843 to set up a consultation with one of our knowledgeable attorneys at The Doyle Law Group, P.A. if you would like to learn more about a Separation Agreement between you and your spouse.

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