One cannot live under the same roof as a spouse and be legally separated, even if a separation agreement exists. North Carolina law requires the spouses to be living actually physically separate and apart (not on the same premises) in order to be legally separated. In theory, it might be possible for an exception to be made if the residence has been divided into two distinct, unconnected units with no overlap or common area. However, one should first consult a North Carolina family law attorney before considering this option, as such an arrangement is generally not advised and might well not be recognized as a valid separation by the court.
How does one file for separation in North Carolina?
While one need not file for separation in North Carolina to be considered legally separate, many couples seeking dissolution of their marriage choose to enter into a separation agreement. Typically these agreements cover issues concerning child custody and visitation, child support, alimony, and division of property. A separation agreement is a legally binding contract between spouses and can be executed only after the parties have already separated or with the stated intent to separate immediately after.
Once you or your spouse have moved out of the marital residence with no intent to resume the marital relationship, the initial conditions for legal separation have been met. The state of North Carolina does not require the filing of any paperwork on the date of separation to be deemed “legally separated” in order to later qualify to file with the court for divorce, after a separation of one year.
Who can draw up a separation agreement?
A separation agreement can be drawn up by either party and once agreed to, requires both spouses to sign the document in the presence of a notary public. As a legally binding contract, a separation agreement can be incorporated into a divorce decree (or not). Regardless, both parties are bound by this legal contract. Enforceable under North Carolina law, the contract enables one party to seek legal remedy against the other should the terms of the contract not be met as previously agreed.
What should be included in a separation agreement?
Separation agreements can cover anything you wish so long as it does not conflict with any existing laws or violate public policy. Some of the items typically covered in a separation agreement include child custody, child support, spousal support, health coverage, benefits, and tax issues. One may address property division of assets and debts as well, assuming that a property settlement has not been executed as well.
Should marital debt be included in a separation agreement?
Creditors are third parties and as such are not bound by any agreement reached between spouses as part of a separation agreement. If a spouse agrees to pay a debt as part of the agreement and does not do so, the lender can legally pursue either or both parties to collect the debt.
What cannot be covered in a separation agreement?
There is a limit to what a separation agreement can or cannot do. For example:
- It cannot bind a third party such as a bank or other creditor (see above).
- It cannot replace a restraining order should one party feel they need protection from the other.
- It cannot bind the court to child custody, child support, or visitation terms as they may be modified at the court’s discretion if deemed in the best interest of the child involved.
We strongly suggest that one consult with a family law attorney before signing any separation agreement. It is important to read the proposed terms carefully and ask your attorney to review them thoroughly, as separation agreements are legally binding.
Still have questions about filing a separation agreement in NC?
The Cary divorce attorneys at Montgomery Family Law are ready to assist you in determining the best course of action given your unique situation.
To schedule an appointment and learn more about our services, call us at (919) 348-2317.