Is a Separation Agreement Right for Me?

What is a Separation Agreement?

Separation Agreements are marital contracts between a husband and a wife as defined in G.S. §52-10 and §52-10.1. The basic agreements for a separation agreement to be valid according to North Carolina Supreme Court case Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327 (1912) and later in Smith v. Smith, 225 N.C. 189, 194, 34 S.E. 2d. 148, 151 (1945) is as follows:

  • A separation must have already taken place, or is to immediately follow the execution of the [agreement]. (2) The separation agreement must be for an adequate reason, not for a mere mutual volition or caprice, and under circumstances of such character as to render it reasonably necessary to the health and happiness of the parties. (3) The agreement of the separation must be reasonable, just, and fair to the wife, having due regard to the condition and circumstances of the parties at the time it was made. And (4) in the State the separation agreement must conform to statutory requirements, where property rights are involved.

The agreements must be in writing and acknowledged by a certifying officer. For example, a separation agreement should be notarized, but can also be signed by a judge. In North Carolina, an unsigned separation agreement has no legal effect. Wade v. Wade, 252 N.C. 330, 113 S.E. 2d 424 (1960).

In most cases, the law requires that both people are actually separated, meaning living under two separate households.  However, in a rare case, Newland v. Newland, 129 N.C. App. 418, 498 S.E.2d 855 (1998), a husband and wife signed a separation agreement 31 days prior to the date of actual separation. . In that case, the parties informed everyone that they had signed a separation agreement and acted as if they had already been separated from the time of the separation agreement was signed.

Separation agreements never have to be filed in court. People choose this option because they can include many provisions that the court cannot or will not handle. This option can keep the agreement between the parties private, and most importantly, it will keep the parties in control of their agreement!  Privacy and control are quite appealing. However, separation agreements can be incorporated into a divorce decree, either as a whole document or separate pieces of the document, to give it the contempt powers of the court.  This also has its benefits.

Can I Get Out Of a Separation Agreement?

Once the parties sign the separation agreement, the agreement is treated as a contract between the parties and enforced through contract laws. The parties are held to the terms that they sign unless they can prove that the contract, when drafted, was unfair and unconscionable. The courts have continuously ruled that people can sign a “bad” or “unfair” contract. The courts in, King V. King, 114 N.C. App. 454, 442 S.E.2d 154 (1994), have determined that to meet the second standard of unconscionablilty, contracts have to be unconscionable both procedurally and substantively. It is a very difficult standard to meet, and one that most parties do not meet.

The death of a party does not does not automatically terminate a person’s obligation for support under a separation agreement. This is different than a court order for child support or alimony. Additionally, in a separation agreement, a person can provide for alimony and post separation support to continue after the dependent spouse cohabitates or remarries. Please see G.S. § 50-16.9(b) and Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248 (1953).

Another unique feature about a separation agreement that is different from a divorce in and consent order in North Carolina is the fact that a claim for alimony in a separation agreement survives a divorce claim, even if it is not filed prior to a divorce. Whereas, if an alimony claim is not filed prior to a divorce, those rights are lost through means of a consent order or any other court order.

Should I Put Child Support & Child Custody In a Separation Agreement?

Separation agreements are essentially contracts between a husband and a wife. Therefore, they are only enforced through the same powers that any other contracts can be enforced. Parents should consider that the only remedy for enforcement if necessary is through the enforcement of the contract. Another thing parents should consider before placing child support and child custody in a separation agreement is that when one parent wants to enforce either as a court order, the parents are not held to the “substantial change of circumstances” standard. Therefore, when one parent files for child custody or child support in a court proceeding, it is treated as a new filing.  (See the case of Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73 (1966)).

Case law dictates that courts can consider previous amounts of child support payments that were agreed to in a separation agreement as a reasonable basis for determining support. Additionally, a court can consider a schedule for custody as it appears in a separation agreement in determining a custody schedule but it is not bound to those terms.  (See the cases of Harrington v. Harrington, 286 N.C. 260, 210S.E.2d 190(1974), Davis v. Davis, 269, N.C. 120, 152 S.E.2d 306 (1967), and Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227 (1964)).

A separation can be incorporated into a divorce decree. If the separation was incorporated into the divorce decree, then the separation agreement has the powers of the court, and would stand up to the “change of circumstances” requirement to modify the provisions.

Child custody and child support should always be handled in a consent order or another order by a family court unless a person wants the order to address insurance, support to extend past 20 years old, payments for college, or other unique issues.

 

Each matter is different and the situations faced by individuals are unique to their particular circumstances.  The ending of a union is difficult in of itself.  Preparing a separation agreement and addressing custody and support creates additional stress.  We encourage you to speak with a qualified family law attorney to address your unique needs and concerns.

 

– GL staff