What a separation agreement can cover
A separation agreement can be as broad or as narrow as the spouses want. Common terms include:
- Property division, including the house, cars, accounts, and retirement plans.
- Debts, and who will pay each one.
- Alimony, including an agreement to pay it, its amount and length, or a waiver of it.
- Child custody and a parenting schedule.
- Child support, health insurance, and how to share child costs.
- Taxes, such as filing status and who claims the children.
- Life insurance to secure support obligations.
- A promise not to bother each other and to live separate lives.
A well-drafted agreement can settle the claims that would otherwise be lost at divorce, such as property division and alimony.
How a separation agreement must be signed
North Carolina has strict signing rules for agreements between spouses. A separation agreement generally must be:
- In writing.
- Signed by both spouses.
- Acknowledged by both spouses before a notary public or other certifying officer who is not a party to it.
An agreement that is not properly acknowledged may not be enforceable. The agreement also must be fair when made, and each spouse should fully disclose income, property, and debts. An agreement signed under duress, or based on hidden assets, can be challenged.
Each spouse should have a separate lawyer, because their interests in the agreement are opposed.
What happens if you reconcile
If spouses get back together after signing, some or all of the agreement may no longer be enforceable. How a reconciliation affects each term depends on the agreement and the law.
Under North Carolina law, resuming the marriage means voluntarily renewing the relationship as husband and wife, judged by all the circumstances. Isolated incidents of sex do not by themselves count as resuming the marriage. If you reconcile and later separate again, have the agreement reviewed before you rely on it.
Some agreements include terms that address what happens on reconciliation. Those terms are worth reading closely, because the default rule may not be what either spouse expects.
Custody and child support terms have limits
Parents can agree on custody and support, and courts often respect those agreements. But a separation agreement cannot stop a court from acting for the children. Either parent can later ask the court to set custody or child support, and the court decides based on the child’s welfare and the Child Support Guidelines.
That is why custody and support terms should be realistic and fit the child’s needs. A support amount far below the Guidelines may not hold up if it is challenged.
Contract or court order
A separation agreement can stay a private contract, or the spouses can ask the court to make it part of a court order. The choice matters.
- A private contract is enforced like other contracts. A spouse who breaks it can be sued for breach, and in some cases a court can order specific performance. The terms stay out of the court file.
- An agreement made part of a court order is enforced as a court order, which gives the court more ways to enforce it. Some terms may also be open to change by the court later.
A lawyer can help you weigh privacy, enforcement, and flexibility before you decide.
Before you sign
Once signed and acknowledged, a separation agreement is hard to undo. Before you sign:
- Make sure you know what you are giving up, especially alimony and retirement rights.
- Get a full picture of your spouse’s income, accounts, and debts.
- Check how each debt will be paid and what happens if your spouse does not pay.
- Make sure the parenting schedule works with real work and school schedules.
- Plan how retirement accounts will actually be divided, since some plans need a separate court order.
- Decide who stays in the house, who pays the mortgage, and when the house will be sold or refinanced.
Do not sign at a kitchen table under pressure. Take the draft home, read every page, and ask questions. A few days of review can prevent years of problems.
How Huggins Law Firm can help
We draft separation agreements, review agreements written by the other side, and negotiate changes. We tell you the hard truth about terms that may not hold up or may cost you later. If the agreement cannot be reached, we prepare the case for court.
Our office is at 826 N. Elm Street in Greensboro. Hablamos español. We explain our fee in writing before you hire us. Call (336) 281-2008 to request a consultation.
This page is general information about North Carolina law, not legal advice. Every case is different, and no lawyer can promise a result.
Questions people ask us
Is a separation agreement required to be legally separated in NC?
No. North Carolina does not require a separation agreement or a court filing to be separated. You are separated when you begin living apart and at least one spouse intends it to be permanent.
Does a separation agreement have to be notarized in North Carolina?
Generally, yes. A separation agreement must be in writing and acknowledged by both spouses before a certifying officer, such as a notary public. An agreement without proper acknowledgment may not be enforceable.
Can we use the same lawyer for a separation agreement?
Each spouse should have separate advice, because their interests in the agreement are opposed. Talk with a lawyer about this before anyone drafts the agreement.
Can a separation agreement be changed later?
Spouses can change it by a new written agreement signed the same way. Child custody and child support can be brought to court regardless of the agreement. Whether the court can change other terms depends on whether the agreement was made part of a court order.
What happens to a separation agreement if we get back together?
Getting back together may make some or all of the agreement unenforceable, depending on its terms and the law. Isolated incidents of sex do not by themselves count as resuming the marriage. Have the agreement reviewed if you reconcile and separate again.