Optimistic that you and your spouse can work your separation out prior to filing a court action? Fantastic, I love the optimism. Here's what you need to know to avoid the drawn out and dreaded legal process.
WHAT IS A SEPARATION AGREEMENT EXACTLY?
A separation agreement is a contract between two spouses that can include as many topics as you and your spouse can agree upon. Most of those topics I've already covered in my family law blog that can be found here and they include child custody, child support, and equitable distribution. Spouses can also include post-separation support and alimony in a separation agreement as well. Separation agreements are authorized by North Carolina General Statute 52-10 as well as common law.
WHAT RECOURSE DO I HAVE IF MY SPOUSE BREACHES THE SEPARATION AGREEMENT?
A breach of a separation agreement is the same as breaching any contract made between two parties. The remedy is the same as if party A and party B enter into a contract for services and party B breaches. Party A can file a breach of contract action against party B to recover damages. Same with a separation agreement. If a separation agreement states that spouse A is to pay spouse B $1,000 a month in alimony and spouse A misses a payment, or payments, then spouse B can file a breach of contract suit against spouse A for breaching their separation agreement. Keep in mind that the statute of limitations for any breach of contract action is three years from the date of the breach or ten years from the date of the breach if the agreement was signed under seal by both parties.
CAN A JUDGE ENFORCE THE AGREEMENT WITHOUT A PARTY FILING A BREACH OF CONTRACT CLAIM?
Yes, however, the agreement must be incorporated into a court order for a judge to be able to enforce the agreement through contempt. If the parties do not have a specific provision in their separation agreement that states that they both intend to have the separation agreement incorporated into a final divorce order, then most judges will not agree to incorporate it into the final divorce order.
WHAT IF MY SPOUSE WON'T SIGN THE AGREEMENT?
Both parties must voluntarily sign and have their signatures notarized for a separation agreement to be valid. However, there will not be a valid contract if a party signs under duress or is unduly influenced. I highly recommend that parties sit down and come up with an idea of what they will agreed upon in a separation agreement and figure out what areas they may need help with. If both parties are far off in what they want in the separation agreement, then a separation agreement may not be in the cards. However, if both parties have everything worked out except one area (ex. Post-Separation Support), then a separation agreement will still be a an option. Private mediation can also be an option if the parties cannot reach an agreement.
DO I NEED MY SEPARATION "PAPERS" IN ORDER TO BE LEGALLY SEPARATED?
This is a very common question and certainly understandable given what is seen in popular culture, but the answer is no, spouses do not have to actually have anything in writing to be legally separated. That said, I highly recommend having a separation agreement in place so there is proof of when the separation started as well as written proof as to what the parties agreed upon in regards to marital property, custody schedules, etcetera. A spouse starts the separation process when he or she moves from the marital home and intends to be separate and apart from the other spouse and actually does so. I go deeper into the elements of an actual divorce action in North Carolina here.
In the meantime, check out my child support video posted here. Until we meet again.
*NOTHING IN THIS BLOG POST ESTABLISHES AN ATTORNEY-CLIENT RELATIONSHIP OR SHOULD BE CONSTRUED AS PROVIDING LEGAL ADVICE.