An Alternative to Litigation.
Litigation may be time-consuming and very expensive, given the amount of work that is required to steer the case to trial. A separation agreement is often the most economical and least contentious route to take for couples who are separating. A separation agreement is a contract signed by the separating spouses that resolves the issues of property division, child custody, child support, and spousal support and alimony. Even where the parties cannot agree on certain issues, for example, child custody, they can still reach an agreement regarding property division and spousal support by way of a separation agreement.
When must a separation agreement be signed?
In order for a separation agreement to be valid and enforceable, the parties must live under separate roofs, or they are at least planning on separating immediately after the separation agreement is signed. To steer from any confusion about whether the separation agreement was signed when one party intended to immediately leave the former marital residence, and calling the validity of the separation agreement into question, it is best practice to sign the separation agreement when the parties are no longer living together.
The Rule of Merger.
A separation agreement may say whether the agreement itself will be incorporated into the parties’ divorce decree. If it is incorporated into the divorce decree, then the separation agreement becomes part of a court order and it is no longer a contract. Thus, it is said that the separation agreement has “merged” into the court order. The difference between a court order and a contract is in the way the terms can be modified and enforced. For example, if a separation agreement that set forth terms for one spouse to receive alimony and it is not incorporated into the court order, then the court does not have jurisdiction to modify the amount of alimony and can only be modified as agreed upon by the parties. If the parties agree to a modification, a separate written agreement signed by the parties before a notary public is required. The parties’ verbal agreement is invalid and it is unenforceable.
If the parties cannot agree.
A separation agreement is a contract that is not valid if it was signed under duress or coercion. There are a number of other defenses to the enforcement of a separation agreement which includes: mental incompetency of a party; intentional non-disclosure of assets; fraud; undue influence; mutual mistakes of material fact; and, unconscionability. These defenses all address the circumstances which existed at the time the separation agreement is executed. The finding of the existence of any one factor may render the separation agreement either void or voidable.
If you and your spouse are unable to reach an agreement, there is no way to legally force your spouse to sign the separation agreement. As such, it is advisable for the parties to come to an agreement on as many major issues as possible before paying us to draft the separation agreement. However, if you are unable to reach an agreement or your spouse refuses to eventually sign the separation agreement, you will have wasted the money spent on the drafting of the agreement.
Other Forms of Agreements.
In addition to separation agreements which is signed after the parties’ separation, premarital agreements, or prenuptial agreements, serve a similar purpose and it is signed prior to the marriage. Couples can structure their financial affairs in a prenuptial agreement if they want to manage their assets apart from their spouse or provide for children from a previous marriage, or if they have different levels of assets or income. Prenuptial agreements are a good way to protect spouses from liability for the other’s debts, and it may also minimize tension if a marriage is later terminated, by knowing in advance the financial rights of each party.
A postnuptial agreement is another type of contract which is signed during the marriage and does not require that the parties have the intent to live separately and apart. Postnuptial agreements are binding contracts that are executed with the same formality as a separation agreement. The difference here is that a postnuptial agreement does not require that the parties have the intent to live separately and apart. A postnuptial agreement allows the parties to decide in advance how they will treat certain assets or liabilities in order to avoid litigation in the event of a subsequent divorce. Postnuptial agreements can also be useful for couples who are living separately but have not decided that they want to divorce.
If you are deciding whether to divorce your spouse or if your spouse has already presented you with a separation agreement drafted by his or her attorney, we can help. We work with clients who mainly reside in Buncombe, Haywood, Jackson, Macon and Swain County. We have a proven track record of helping our clients succeed. We are here and ready to help you. Get a free case evaluation today by filling out this contact form or, if you are ready to sit down and meet us in person, call us today for a consultation.