A separation agreement is a contract, made by separating spouses, which can be made binding upon a couple by their signatures. North Carolina is unique from most other states in that spouses can enter into a separation agreement and have it be binding without a judge’s approval being required. Parties can reach agreements as to how child custody will be divided, how much spousal support will be paid, the property division, and the amount of child support. In addition, spouses can also agree who will claim the tax exemption for the children.
Another advantage of separation agreements is that certain things the court cannot resolve can be reached by agreement. For instance, a court cannot order one spouse or the other to pay for college expenses; however, the parties may reach an agreement that details how the expenses will be paid in their separation agreement.
Divorcing spouses should also set forth their debts, and determine how they will divide them. A separation agreement should contain a list of the debts, the amount of indebtedness, and who will be responsible for paying them. Note, however, that even if one spouse agrees to take on the debts in the agreement, if both spouses are on the obligation, both are still liable to (and subject to collection from) the original creditor.
Note that there is some latitude granted to courts in later modifying provisions regarding child custody, if they determine a modification is in the best interests of the child. However, the court will be required to use the separation agreement as a starting point.
Be aware that if the provisions of a separation agreement are violated, you cannot take your spouse to court for contempt of court within the context of your divorce case. However, you are able to file a lawsuit against them for failing to live up to the provisions of the agreement. (If you want the protection of contempt of court, you can enter into a consent agreement, which is similar to a separation agreement in some ways, but requires approval from a judge.)
To ensure maximum enforceability, as well as to make sure that tax benefits are handled appropriately, it is always best to consult with an attorney who works with family law to draft your separation agreement. Contact Meek Law Firm so we can help you prepare the most advantageous, and enforceable, agreement possible.
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