A separation agreement, more accurately called a “separation agreement and property settlement,” is a contract between spouses resolving legal and financial issues before the entry of a divorce judgment. Its purpose is to avoid the judicial process. As its name suggests, it contains two types of agreements in one document — a “separation agreement” and a “property settlement.”
The “separation agreement” is a contract in which spouses agree to live separate and apart. It typically contains provisions affecting marital support obligations, such as post separation support and alimony for the dependent spouse. To be enforceable, it must be executed and acknowledged when the parties have already separated or are planning to separate immediately.
The “property settlement” addresses property rights, financial obligations, and the division of marital and divisible property. It sets forth a plan for the distribution of assets and debts. Assets may include the former marital residence, vehicles, household furnishings, bank and investment accounts, retirement plan accounts, and interests in businesses. Debts may include mortgages, lines of credit, credit card debt, medical bills, student loans, vehicle loans, and family business obligations. Parties may enter into property settlements at any time — before, during, or after marriage.
To be enforceable, North Carolina separation agreements and property settlement agreements must be in writing. They must also be acknowledged by both spouses in the presence of a notary public. Because such agreements contain releases and waivers of rights, they must be carefully drafted to comply with the law and to accomplish the parties’ objectives. A poorly-written agreement may be unenforceable and result in problems down the road.
We know what we want to do. Can one lawyer represent both of us in drafting the agreement?
First, kudos to you for working together. But unfortunately, no. An attorney may ethically represent only one spouse in connection with the preparation of a separation agreement and property settlement. There is an inherent conflict of interest in representing two clients whose goals, interests, and needs are different or may become different in the future. It is important that both of you receive independent legal advice for your situation.
Frequently, we support couples in mediation by drafting separation agreements and property settlements after they have negotiated terms. In such cases, one spouse will hire us. We’ll use the mediator’s summary as a guide in preparing the agreement. This is an extremely cost-effective way to finalize a settlement. Call us if you’d like more information about how this type of representation works.
Reviewing Agreements and Coaching
We are also happy to review and offer advice on settlement proposals and agreements prepared by your spouse or his or her attorney. To save time, we’ll ask you to send us the proposal or draft agreement to review before your appointment. You’ll leave with your questions answered and the information you need to make smart decisions.