What You Need to Know About Legal Separation in North Carolina
In North Carolina, legal separation is the status of a married couple who live separate and apart but are not divorced. In order to qualify as legally separated, there must be an agreement, either verbal or written, that the parties intent to stay separate and apart- along with proof of separate residences. A separation agreement is an enforceable written contract between two parties who are legally separated . The agreement details are rights and responsibilities moving forward. A separation agreement can address all aspects of separation, including where each party will live and how they will share, split or divide assets, debts, alimony, child custody, child support and other family law matters. A written separation agreement is a sophisticated contract that is legally enforceable, but it is not filed with the clerk of court.
The Key Elements of a Legal Separation Agreement
North Carolina legal separation agreement forms must include certain basic components in order to be court enforceable. For this reason, many lawyers fear that individuals may try to use generic online separation agreements as a means of preparing an enforceable contract for a legal separation in North Carolina. Therefore, the following is a brief discussion of the components of a North Carolina legal separation agreement.
Division of Property
When reviewing North Carolina legal separation agreement forms, you will notice that the majority of them include a provision that requires the spouses to divide all their property in accordance with North Carolina equitable distribution law. In other words, regardless of how property is divided, an equitable distribution provision in a legal separation agreement in North Carolina will preserve each spouse’s right to request the equitable distribution of their marital estate in the event a divorce is finalized. If a spouse does not wish to waive their right to equitable distribution, the spouse should seek out a separation agreement form that does not use the phrase "irrevocable waiver of property rights in lieu of equitable distribution." If no such waiver is intended, the interchangeable use of separation and property division provisions may not be a problem, but a spouse should be aware of the potential problems that could result if the intent is to relinquish a right to equitable distribution, but the separation agreement does not clearly state the intent.
Spousal Support
Separation agreements in North Carolina also need to address the issue of spousal support: legal alimony or post-separation support. Under North Carolina law, the right to sue for alimony is waived if alimony is not included in the legal separation agreement. Some spouses plead that they are uncertain if they want an award of alimony in the future so they do not include provisions in their separation agreements. This does not prevent a court from ordering post-separation support, however. For this reason, individuals should review separation forms that include provisions for post-separation support so they are not unprotected in the future should a court determine they are spouses entitled to post-separation support or alimony.
Custody and Visitation
Separation agreements also normally include custody and visitation provisions. Most North Carolina courts will enforce the terms of these provisions as long as there is no evidence of coercion or fraud. However, if the custody provisions are not order of the court, a party may have greater difficulty enforcing the terms of the agreement.
Child Support
Child support is another issue required to be addressed in a legal separation agreement. Since child support is statutory and always modifiable and terminable in accordance with North Carolina General Statute 50-14.1, a court may deviate from the terms of a separation agreement when issuing a child support order. For this reason, a legal separation in North Carolina may not provide spouses all the rights obtained under a valid separation agreement if the terms of that separation agreement are not made into an order of the court.
How to Create a Legal Separation Agreement in North Carolina
If you decide to draft your own legal separation agreement, it is paramount that it be done correctly. Even though North Carolina does not require a legal separation agreement in order to obtain a divorce, it is still a good idea to have one in place. A legal separation agreement memorializes your or your spouse’s intent to be legally separated, and sets forth how you want to divide your assets and debts during your separation and the terms of any spousal support.
A legal separation agreement is a contract, so I would recommend having an attorney review it to make sure that it is enforceable should you ever need to rely upon it. There are certain things that need to be addressed and specific language that needs to be used in a legal separation agreement to make sure it meets the legal requirements set by precedent and the General Assembly.
Where Can You Find Legal Separation Forms In North Carolina?
If you are looking for legal separation forms online, the Wake County Clerk of Court’s Office has a page on their website where they have a number of family court forms that include common family law forms used in civil court proceedings. You can find that form library here. You may also find some clerks of court in other counties that have similar online resources for their respective areas. The general website for all of the North Carolina state courthouses can be found here.
If you are unable to find the forms you need online, you can go to your local courthouse and obtain forms for legal separation from the clerk of court. In Wake County , you will go to the civil division where all of the forms are kept in drum file cabinets. The staff there can help you locate the form that you need. You can also get copies of the forms from the Wake County Family Court website. Many courthouses have a waiting area with self service kiosks with a number of common forms that walk you through the process of filling out and filing the paperwork. Family law matters take place in District Court in North Carolina.
If you are really in a bind and need assistance with your case, I would suggest that you contact a non-profit organization like the Legal Aid of North Carolina or the North Carolina Bar Association which provides limited legal services free of charge for individuals that qualify. You can apply for free legal help from Legal Aid here.
The Importance of Hiring an Attorney for Your Separation Agreement
Given the potential pitfalls of failing to seek legal advice, both spouses of a separation generally are advised to at least speak with an attorney before proceeding with a North Carolina separation agreement. An experienced divorce attorney will not only assess whether the information provided in a separation agreement form is consistent with your marital property ownership and debt assumptions, but will also be able to identify areas of your agreement that may be problematic or require additional information to sufficiently protect your rights.
Often, after completing a legal separation agreement form, a spouse may not recognize the property rights and assets that they are giving up. Legal language found in a North Carolina separation agreement is unique and can be difficult for some people to understand without professional guidance. Without seeking advice from a lawyer, you may make costly mistakes or sign a marriage separation agreement that you do not fully understand.
Likewise, if your spouse completes and signs a separation agreement without speaking with a lawyer, s/he may not understand the full extent of rights relinquished or even communicatively able to tell the attorney what his/her rights are to protect, which could result in the separation agreement not adequately handling all your rights.
In reviewing a potential legal separation agreement form, the most common issues our divorce lawyers see are:
Common Questions and Answers On NC Separation Agreements
Legal separation agreement forms are standardized across the state of North Carolina, but individuals often have questions or concerns pertaining to their specifics or potentially longstanding misconceptions that can be cleared up by a knowledgeable family lawyer. For instance:
Do you HAVE to file a legal separation form before you can file for divorce in North Carolina?
No. In the state of North Carolina, you do NOT need a legal separation before you can file for divorce from your spouse. If you meet the legal separation period (12 months) before filing a complaint for divorce, you can obtain a legal separation agreement from your family lawyer that will be used as the basis for all future spousal settlement negotiations. A cooperative separation agreement will save you time and stress in the long run.
What if my spouse refuses to offer a separation agreement?
Since separation agreements must be agreed upon by both parties or, in the absence of one at-fault spouse, be done by court order, your spouse may refuse your terms. In this case, you need to consult with a divorce attorney about the possibility of arbitration or seeking court-ordered separation. If you know your spouse is going to be defensive , you will want to speak to a qualified divorce lawyer before making any moves.
What is the benefit of having a separation agreement?
Separation agreements allow you to determine spousal support and establish exactly how property will be divided in the event of divorce. They are sometimes called marriage dissolutions. They put into writing the wishes of both the husband and wife as shown in the most common legal separation forms, and it is only after both parties are satisfied with further arrangements that it becomes legally binding. Because of the amount of negotiation that is involved, separation agreements can be quite advantageous to both parties.
If the legal separation agreement that I made with my spouse is not upheld, what happens next?
If one party fails to live up to the terms of the separation agreement, the other may petition for a judicial review of the violation. This is sometimes called a "motion to compel" for compliance. It is, in essence, a request that the court examine the separation agreement terms that were violated in order to enforce them or otherwise issue a ruling regarding the adjustments that need to be made to bring them into conformance. A family attorney familiar with separation agreements can help you draft the motion to compel and navigate the court’s expectations.
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