A separation agreement or separation agreement and property settlement is a contract between a husband and wife that settles the marital claims at the end of their marriage. If drafted properly, a separation agreement can fully resolve claims of property division (equitable distribution), alimony, child custody, and child support. The majority of divorcing parties in North Carolina settle their marital claims with separation agreements.
Separation agreements must meet certain formalities to be enforceable, and the drafter need be aware of and understand not only the marital claims being resolved, but also fundamental contract law to ensure the legality and enforceable of a Separation Agreement.
At The Doyle Law Group, P.A. our Raleigh divorce lawyers have drafted separation agreements for North Carolina couples for over 20 years. We have the skills, experience, and knowledge to ensure your separation agreement is drafted with your best interests in mind.
Basic Legal Requirements of a Separation Agreement
- Must be in writing
- Parties must be married and not divorced
- Signatures must be notarized
- Signatures must be voluntary and free from coercion
- When parties are unrepresented, a fiduciary relationship may be inferred raising the fairness and disclosure requirements
- The agreement must fully resolve the claims, and expressly waive the marital claims
- There must be consideration
- The agreement must not be so manifestly unfair as to “shock the conscience”
Common Defenses to Legality or Enforceability of a Separation Agreement
You or your spouse may dispute the validity of a separation agreement if one or more of the conditions are present:
- Fraud or duress
- Non-disclosure or false disclosure of assets
- Lack of capacity (one party cannot legally consent)
- Undue influence
Is a Separation Agreement a Good Idea?
We recommend separation agreements in cases where there is a certain level of trust between the parties and your spouse is a responsible individual with good credit. A spouse that never pays their own bills is not a good candidate for a contract. If your spouse only responds to force, a separation agreement settlement is not the best choice.
Separation agreements are also somewhat less effective in regard to child custody as the custody provisions are not binding in court and are not typically enforced by local police. Complicated or high value property divisions may also be poor candidates for separation agreements since the enforcement mechanisms are weaker and some third parties may not be as willing to recognize the contract.
Advantages and Disadvantages of Separation Agreements
Separation agreements are typically less expensive than consent order settlements. Longer periods of negotiation or frequent revisions can make the separation agreement expensive. Still, a separation agreement is not likely to reach the same cost as a consent order, which is typically taken to court.
Learn How a Separation Agreement Can Make Your Separation Easier
Regardless of what your case involves, a family law attorney is invaluable when it comes to resolving marital claims and formalizing separation agreements. At the Doyle Law Group, we have been helping clients resolve and settle divorce claims for over 20 years. To learn more about separation agreements in North Carolina, call (919) 301-8843 or complete the form below.
Contact Our Family Law Firm to Learn More about Separation Agreements: (919) 301-8843.
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