Ye Old Separation Agreement

You hear all the time about “separation agreements.” But what are they actually? Ah, the question of all time. Okay, maybe not all time, but many times. So, here’s the deal: first, you don’t need (at least in NC) a written separation agreement to be legally separated. As we have discussed, to be legally separated in NC just requires living totally separate and apart with one of you having the intent to end the marriage.

Separation Agreements (“SA” ) are really Property Settlement Contracts. It’s the method to resolve the division of assets and debts, alimony, and even child support by a contract versus litigation. It IS NOT a child custody order. At all. But if you both sign the SA properly in accord with NC law, you are done, like really done on the issues of alimony and property/debt division. You best be careful what you agree to.

Now let me warn you on some things:

• 1. If you agree to pay a certain amount of CS by contract, and then later get sued, and the court ordered amount is less than the contract amount, guess what? Ya, you pay the difference if you get sued to enforce the contract.
• 2. If you agree to pay for college for your kids by contract (really stupid idea), you’re stuck. Don’t do it. NC law does not allow for it by court order, unless you agree to it, but if you do by court order and then cannot afford it, you can at least file motions to modify the CS. You cannot file “motions to modify the contract” because the contract IS NOT a court order.
• 3. Alimony. Oh boy. You best be careful on this one too. If alimony is court ordered, then it can end upon the death of either party, remarriage of the one getting it, or if the one getting it “shacks up” as if married (called cohabitation), or by court order on motion to terminate of modify it. But if you get stupid, and you agree to pay it by contract with no terminating events in the contract, you pay FOREVER, and forever sucks. Don’t do it. (Google Marsh v Marsh on February 15, 2000, my winning in the NC Court of Appeals. It sent shivers down the backs of many attorneys). Seriously, read it.
• 4. If your SA fails to have the proper language regarding division of pensions, you’re sunk. I’ve seen too many of those, where attorneys or parties “rushed” to get the SA done, and frankly, screwed it all up, and the Former Spouse got nada. Like “NADA” , zilch, no pay due, goooood bye money, yeah,,,,,,zero bucks. Don’t play with these. They have numerous land mines and if you step on one, you’re a goner.

Contract law is very technical, and too many people are doing the AI versions, or using their friend’s version as a guide without knowing the law. Yeah, I said it, some of you are being cheap trying to avoid lawyers, and then you bind yourselves to horrible financial traps. And you’re stuck. And being stuck can bankrupt you. Don’t do the “pro se” thing. It will cause major problems for you in the future.

Hire an attorney experienced in these things and do not rush them. The laws, especially on pensions, have changed a lot (especially military pensions).

Okay, now that you’ve heard the “divorce word,” go have that Mai Tai (but no driving the golf cart), and call an experienced family law attorney to represent you in the SA process.