If your spouse refuses to sign divorce papers, learn what your options are and how…
In North Carolina, couples have to live separately for a minimum of one year before filing for a divorce. During this time, one or both parties can draft a separation agreement that outlines child support and custody arrangements, property division, and who is responsible for paying debts and bills.
Often, these agreements can be used as the foundation of a divorce agreement so there is no need for a lengthy and expensive courtroom battle and both parties can meet their goals. But, what happens when you draw up a separation agreement and your spouse won’t sign it? Our divorce lawyers in Raleigh are exploring this topic to break down your options.
Separation Agreement Laws in North Carolina
In North Carolina, a separation agreement is a legally binding contract that outlines the terms and conditions agreed upon by a married couple who have decided to separate or divorce. It serves as a comprehensive document that covers various aspects of their separation, such as property division, child custody and support, spousal support, and other relevant matters.
Let’s explore some key points to understand about separation agreement laws in North Carolina.
A separation agreement is a voluntary agreement between the spouses. It requires mutual consent and cooperation to reach an agreement that addresses the terms of their separation.
To be valid and enforceable, a separation agreement in North Carolina must be in writing and signed by both parties. It does not necessarily need to be filed with a court, but having it notarized is highly recommended.
The separation agreement typically includes provisions for dividing marital property and debts. North Carolina follows the principle of equitable distribution, which means that the property should be divided fairly, but not necessarily equally. Spouses have the flexibility to decide how to divide their assets and debts, but the court can intervene if the agreement is deemed unfair or unreasonable.
Child Custody and Support
If the couple has children, the separation agreement can address matters related to child custody, visitation schedules, and child support. North Carolina courts prioritize the best interests of the child when determining custody arrangements. While parents can agree on custody and support terms, the court may review and modify these provisions if it finds that they are not in the child's best interests.
The separation agreement can also include provisions for spousal support or alimony. It may specify the duration, amount, and terms of payment. The court may review the agreement to ensure that it is fair and reasonable.
Modification and Enforcement
Once a separation agreement is signed and executed, it is legally binding and enforceable. However, circumstances may change over time, and either party can seek modification of the agreement if there is a significant change in circumstances. If one party fails to comply with the terms of the agreement, the other party can seek enforcement through the court.
It's important to note that while a separation agreement can provide a framework for the separation process, it is still advisable to consult with a knowledgable divorce attorney who specializes in family law in North Carolina. They can provide guidance and ensure that your rights and interests are protected throughout the separation or divorce proceedings.
Are Separation Agreements Mandatory in NC?
In North Carolina, a separation agreement is a written contract between two spouses, and while they can make the separation process easier, they are not a legal requirement. Therefore, if one party approaches the other with an agreement, the other party is under no obligation to sign the document.
It’s also important to note that any signature obtained on the separation agreement must be obtained through lawful means. This means a spouse can’t coerce, manipulate, or use aggressive persuasive tactics to convince the other spouse to sign. For example, one party can’t threaten to withhold visitation of a child, make harassing phone calls, or block access to marital property until the other party signs the agreement. Doing so can make the contract unenforceable in a court of law if it can be shown that a signature was obtained through fraud, manipulation, or duress.
Action to Take When Your Spouse Won’t Sign Separation Agreement
When your spouse refuses to sign a separation agreement, it can be a challenging situation. However, there are some actions you may consider taking in the circumstance of having a spouse who won’t sign a separation agreement.
Initiate an open and honest conversation with your spouse to understand their concerns and reasons for not signing the separation agreement. Try to address any misunderstandings, provide clarifications, and discuss the benefits of reaching an agreement for both parties.
If you would like to have a separation agreement in place, but you’re concerned about your spouse not signing, you may want to consider mediation. A third-party mediator would work with both of you to negotiate a separation agreement that includes terms that are acceptable to both parties. Once both parties have signed the agreement, it is legally binding. For example, if one party promises to pay the mortgage, then doesn’t, the other party can sue for breach of contract. However, child custody and support are not legally binding, and a judge can modify the arrangement if it’s in the best interest of the child.
Seek Legal Advice
Consult with a family law attorney in your jurisdiction. They can assess the situation, provide guidance based on the specific laws in your area, and advocate for your interests. An attorney can also explore legal options to address the refusal to sign the agreement.
Modify the Agreement
If your spouse has specific objections to certain terms of the agreement, you may consider revisiting those provisions and negotiating changes. By showing willingness to compromise and address their concerns, you may increase the chances of obtaining their cooperation.
If all attempts at negotiation fail, you may need to involve the court. Consult with your attorney about the possibility of filing a legal action to enforce the agreement or request the court to make decisions regarding property division, child custody, and support. Keep in mind that court proceedings can be time-consuming and costly, so it's essential to weigh the pros and cons.
Protect Your Interests
When your spouse refuses to sign a separation agreement and won’t work with you to negotiate one, you need to protect your interests. Maintain detailed records of all communication, financial transactions, and relevant information. Keep copies of the proposed separation agreement and any correspondence related to it. This documentation can be helpful in legal proceedings, if necessary.
If you have children together, you can get a court order for child support and custody during the separation period. You’ll also want to protect yourself financially during this period until the divorce is finalized, whether you and your spouse create a divorce settlement or it’s settled by a judge.
While we highly recommend getting personalized advice from an experienced divorce attorney, you can do the following:
- Cancel joint credit cards and separate debt. This may involve both parties paying off joint debts, or dividing the debt and transferring it to credit cards individually held.
- Run your credit report and check it for changes.
- Determine your marital assets and separate assets.
- Get copies of your financial statements and tax records.
- Secure cash or liquid assets by setting up a bank account in only your name and transferring enough to cover your bills. Draining the account can lead to problems during the divorce.
Separation Agreement FAQs
Can we create a separation agreement without involving attorneys?
While it is possible to create a separation agreement without involving attorneys, it is advisable to consult with a family law attorney in North Carolina. An attorney can provide legal advice, ensure your rights are protected, and help draft an agreement that is fair and enforceable.
Are separation agreements enforceable in North Carolina?
Yes, separation agreements are enforceable in North Carolina if they meet the legal requirements and are properly executed. However, it is important to note that the court can review and modify certain provisions, particularly those related to child custody and support, if it deems it necessary for the best interests of the child.
Can a separation agreement be modified?
Yes, a separation agreement can be modified if there is a significant change in circumstances. For example, if there is a substantial change in income or if the custody arrangement is no longer suitable, either party can seek a modification. It is important to consult with an attorney to understand the specific requirements and process for modification in North Carolina.
What happens if one party violates the separation agreement?
If one party fails to comply with the terms of the separation agreement, the other party can seek enforcement through the court. It is advisable to consult with an attorney to explore the available legal remedies and options for enforcement.
Is a separation agreement the same as a divorce decree?
No, a separation agreement and a divorce decree are two separate legal documents. A separation agreement is entered into by the spouses during the separation process and outlines the terms of their separation. A divorce decree, on the other hand, is issued by the court at the end of the divorce proceedings, officially dissolving the marriage.
Can we include temporary arrangements in a separation agreement?
Yes, a separation agreement can include temporary arrangements to address immediate concerns during the separation period. Temporary provisions can cover matters such as temporary custody arrangements, living arrangements, financial support, and other relevant issues.
No, it is not advisable or ethical to trick or deceive your spouse into signing a separation agreement. Engaging in deceptive practices can have serious legal and ethical consequences.
When it comes to separation agreements, honesty, transparency, and open communication are essential. It is important to foster an environment of mutual respect and fairness during the negotiation process. Attempting to trick or manipulate your spouse into signing an agreement can undermine trust and potentially invalidate the agreement.
Schedule a Consultation with a Divorce Attorney in Raleigh Today
If you need assistance in drafting a separation agreement or need an aggressive divorce attorney who will fight on your behalf to protect your interests, schedule a consultation with The Doyle Law Group today. We are dedicated to helping our clients get favorable outcomes so they can begin their life after divorce with confidence and security. Call us at (919) 301-8843 or fill out the form below to get started.