What is a Separation Agreement?
A Separation Agreement is a legally binding contract between two spouses who are living separate and apart or who plan to separate immediately after executing the Separation Agreement. The purpose of a Separation Agreement is to address and fully resolve all of the existing marital legal issues prior to divorce. A Separation Agreement is not mandatory, but it is a very useful tool to disentangle your joint finances, distribute your property, assets, and debts, and define your legal obligations post-separation. We generally recommend our clients enter into a Separation Agreement during the course of their separation.
Do I need to have a Separation Agreement to be legally separated?
No, the only thing you need to be “legally” separated is for one spouse to move out of the marital residence, with at least one spouse having the intention for separation to be permanent. Staying in separate bedrooms under the same roof is not considered a separation.
What can be included in a Separation Agreement?
A Separation Agreement may address the following issues: Property Settlement, Spousal Support/Alimony (or waiver of the same), Child Support, and Child Custody. Property Settlement, or the division of the marital estate, details and distributes all of the assets and debts acquired during the marriage, which can include:
One question we often get from clients is if the Separation Agreement can include an obligation for the other parent to help pay for a child’s college education. There is no law that absolutely requires a parent to pay for college expenses. In a Separation Agreement or a College Expenses Agreement, however, you and your spouse may choose to agree to pay for a child’s college expenses. Be sure to seek independent legal advice before entering into a Separation Agreement.
Why do I need a Separation Agreement?
The main reasons are fourfold:
Do I need an attorney to draft a Separation Agreement?
Yes, it is best for both you and your spouse to have your own independent legal representation to draft, review, and advise each of you individually before the Separation Agreement is executed.
How do I make sure that my Separation Agreement contract is upheld?
Both parties should have their own separate attorneys to review the Separation Agreement prior to signing and receive independent legal advice for their individual situations. Independent legal representation prevents one spouse from reneging on the contract and saying he or she did not understand the contents of the contract when he or she signed it.
Each party must attest that they have disclosed all marital assets, liabilities, and income, which allows the parties to enter into the Separation Agreement knowing that the entirety of the marital estate is addressed. When both parties have independent counsel, their attorneys can assist with the full financial disclosure to ensure the contract will be upheld.
Both parties must sign the Agreement and their signatures must be notarized.
How soon can I get divorced?
If you are filing for a no-fault divorce, you can file for divorce one year and one day after your date of separation. If filing for a fault-based divorce in South Carolina, you may be able to file for divorce earlier. Signing a Separation Agreement does not change the waiting period for no-fault divorce, but does give you the peace of mind that the complicated logistics of the division of your marital estate have been addressed prior to filing for divorce.
If you choose to enter into a Separation Agreement, you have control of the outcome of your division of marital assets, custody, and child support, when so much feels out of your control during separation and divorce.
What is a Prenuptial Agreement?
A prenuptial agreement is a contract between two prospective spouses made in contemplation of marriage and which becomes effective upon marriage, which dictates the rights and obligations of the spouses during the marriage and in the event of divorce or death of one of the spouses. Prenuptial agreements must be reduced to writing and signed by both parties. There must be a full financial disclosure between the prospective spouses prior to entering the agreement. A prenuptial agreement can be modified after marriage, so long as the modification is in writing and signed by both spouses under oath.
When should you consider a prenuptial agreement?
A prenuptial agreement can be beneficial to all prospective spouses to avoid the expense and conflict that may arise if a marriage ends. A prenuptial agreement circumvents subjecting much of your marital estate to division by the court by defining what the other spouse will receive upon divorce or death. By discussing a prenuptial agreement prior to marriage, prospective spouses open the lines of communication about difficult subjects that many people avoid like finances, assets, debt, death, divorce, and life insurance. By promoting honesty and transparency in marriage, a prenuptial agreement can help individuals avoid the problems which often lead to divorce and promote marital harmony knowing that each spouse is fully aware of the financial implications of the marriage union.
Prenuptial agreements can be especially helpful in the following situations:
What can be included in a prenuptial agreement?
Typically, prenuptial agreements are used to define the property rights, legal rights, and obligations of prospective spouses if they get divorced.
In a typical prenuptial agreement, the spouses agreed upon the following:
What cannot be included in a prenuptial agreement?
In North Carolina and South Carolina, premarital agreements cannot waive child support or pre-determine an amount for child support obligation, and premarital agreements cannot pre-determine child custody.
If your prenuptial agreement leaves your spouse without any means of support, and upon divorce, he or she must apply for public assistance, the waiver of support provisions of your prenuptial agreement would likely be deemed unconscionable and therefore unenforceable.
What is important in order for the prenuptial agreement to be upheld in the future?
The terms must be fair and reasonable.
Full financial disclosure: In both South Carolina and North Carolina, each spouse must make a full financial disclosure of their individual assets, debts, and incomes prior to entering into the prenuptial agreement.
Valuation of assets: Assets like a business might need to be valued by an independent business valuator before including the asset in the prenuptial agreement to ensure the business is valued properly for the full financial disclosure.
Independent legal counsel: The best way to ensure your prenuptial agreement will be upheld by a court is for each prospective spouse to have independent counsel and receive independent legal advice regarding the prenuptial agreement prior to signing the agreement.
Time between the execution of the agreement and the upcoming wedding: You and your prospective spouse want to have time to discuss all the financial implications of marriage and all of the details of a prenuptial agreement prior to entering into it. If you ever find that you must enforce your prenuptial agreement, this will also help prevent the other party from arguing that the agreement was signed under duress or coercion because it was executed the day before the wedding when the deposits for the wedding venue and caterer were non-refundable. It is best to have an ample amount of time to review the Prenuptial Agreement draft, ask your attorney questions, and not be rushed to execute the agreement prior to your wedding date.
Please contact our office if you are considering a prenuptial agreement. We would be happy to assist you.
Can I date during my separation?
In North Carolina: Yes, you can begin dating after you are separated from your spouse. You must wait a year and a day after separation to file for divorce and some people choose to begin dating again in that time period. There is nothing unlawful about dating someone new after separation, as long as you are living separate and apart under a different roof from your spouse and you intend the separation to be permanent. However, it is wise to wait for a little while after your separation to begin dating again. It is important to give yourself time to process the divorce and loss of your marriage relationship and avoid the negative effects a new dating partner might have on your property settlement negotiations and child custody arrangement with your spouse. In North Carolina, if your spouse has made allegations of adultery or marital misconduct, it is best not to date until after your divorce is final. Your spouse (and a judge if your case ended up in court) might view moving in with a new dating partner soon after separation as supporting evidence that the adultery alleged actually occurred.
In South Carolina: Generally, no, in South Carolina, you should not date while you are separated. By dating someone other than your spouse, you run the risk of being accused of having a sexual relationship with someone other than your spouse (even if you are not). South Carolina has a black-and-white view of what constitutes adultery; even if you are “separated” in South Carolina, you are still legally married, and having a sexual relationship with someone who is not your spouse is considered adultery. In South Carolina, adultery can adversely affect alimony rights and claims, property settlement rights and claims, and occasionally child custody.
Can I introduce my new partner to my children?
Oftentimes in child custody agreements, there will be a clause that requires you to date a new partner for a certain time period (for example, 3-6 months) before even introducing the partner to your children. Your parenting agreement might also prohibit you from having a new partner stay overnight when the children are with you. If you agreed to those terms in a Separation Agreement or Consent Order for Child Custody, you need to abide by them.
If you leave your marriage and immediately begin living with someone new, your children (and your spouse) will likely be hurt and confused. It will likely have negative consequences on your relationship with your children and on the potential outcome of a child custody agreement with your spouse, if there isn’t one in place.
Why should you wait to date?
Psychologists compare the loss of a marriage relationship as akin to the loss of a loved one through death. People often grieve the loss of a marriage relationship in the same way, by going through the five stages of grief (denial, anger, bargaining, depression, and acceptance). In our law practice, we often see the spouse who has chosen to leave the marriage is further along in the grief cycle, sometimes all the way to the “acceptance” stage whereas the other spouse may be in the “denial” or “anger” stage. If you immediately start dating and your spouse is aware, your settlement negotiations could be derailed by the emotional impact on your spouse. We recommend avoiding jumping into a new relationship; it can preserve peace between you and your spouse which may enable you to work out the terms of your separation amicably.
Who will get the kids?
An agreement between parents is always preferable to going to court and having a judge determine your custody arrangement. In an agreement, you and your spouse maintain control over exactly what your custody arrangement looks like and can consider any factors that affect your children’s best interests (like each of the parents’ work schedules, schooling arrangements, extracurricular activities, locations of each of the parents’ homes, the children’s ages and wishes, and so forth). Until there is a custody agreement between the parents, each parent has equal rights to custodial time with the children of the marriage.
When can my child choose the parent with whom they wish to reside?
There is no set age when children get to “choose” their custodial parent. The focus in determining a child custody agreement is what is in the best interest of the child. An older child or teenager’s wishes should be given considerable weight when determining a child custody arrangement with your spouse or the other parent. Teenagers who have their own lives including jobs and extracurricular activities and are able to drive are unlikely to follow a child custody arrangement with which they disagree. Forcing a teen to follow a custody arrangement with which they disagree is likely to cause more harm than good in your relationship with the child. A younger child’s wishes should be considered, but generally should not be determinative. Children often tell both parents they want to live with them. This is typically because children often wish they could have their “old life” back, living with both parents like they used to when their parents were together, and also because children want to please their parents, particularly in times of perceived stress and anxiety.
Is there a custodial preference for mothers over fathers?
No, there is not a custodial preference for mothers over fathers in North or South Carolina. Until a judge orders otherwise, or the parents agree otherwise, two married parents who are separating have equal rights to custody of their children. We have seen that children benefit from strong relationships with both of their parents. An experienced family law attorney can provide ample guidance to parents questioning what schedule might be in the best interests of their children, as there are many variations of parenting time schedules. The best schedule is the one that works well for your own family.
If parents share custody, does anyone pay child support?
It depends. The Child Support Guidelines in both North Carolina and South Carolina determine if and how much child support should be paid. The child support obligations are loosely based upon how many nights per year a child spends with each parent. In North Carolina, for example, child support for shared custody is determined by using the Child Support Guidelines “Worksheet B.” If parents share custody of the children equally, you enter in the following information on Worksheet B to determine if child support is owed:
Can I move?
Yes, you are legally able to move wherever you would like. If you have children, however, you may not have the legal right to bring them with you when you move. If there is no custody order or agreement in place, each parent has equal legal rights to the children. If you are separated and want to move the children out-of-state or far away from the other parent, you must inform the other parent and get their approval to take the kids with you. If the other parent does not agree and you move with the children anyway, the other parent could file for an emergency, expedited, or temporary order in court which could force you to bring the children back to their home state. If you move with the children and do not inform the other parent of the children’s whereabouts, the legal consequences could be dire. Courts take a parent’s constitutional right to parent his or her children very seriously and moving without informing the other parent is not likely to provide you with the outcome you desire in your custody case.
In most circumstances, it is best for children to have access to and a meaningful relationship with both of their parents. Moving children far away from one of their parents can have major legal and emotional consequences for you and for the children. Consult with an attorney for more information and guidance on your specific custody situation, as we understand these situations are nuanced and complicated.
My spouse cheated on me/I cheated on my spouse, how will that affect my case?
If you engage in a sexual relationship with someone who is not your spouse prior to your date of divorce, that is considered adultery in both North and South Carolina.
If you engage in a sexual relationship with someone who is not your spouse prior to separation (in North Carolina) or the signing of a final settlement agreement or date of divorce (in South Carolina), that act of adultery could result in significant legal and financial ramifications.
If you are the dependent spouse seeking alimony, but the supporting spouse has evidence you committed adultery, you will be barred from receiving alimony. On the other hand, if you are the supporting spouse, you committed adultery, and your spouse has evidence of the adultery, you will likely be required to pay alimony.
My spouse is moving in with his or her new partner (or I want to move in with mine); how does that affect my case?
To prove “cohabitation” in North Carolina, the supporting spouse must show that a dependent spouse is living with someone else in a romantic relationship that provides economic benefits similar to those that are provided in a marriage relationship.
“Cohabitation” in South Carolina is defined as when the supporting spouse can prove that the dependent spouse has resided with another person in a romantic relationship for more than 90 consecutive days.
If you are seeking to collect spousal support as a dependent spouse, but then move in with a new dating partner, you will likely not be eligible to receive spousal support. The reasoning behind this rule is that your former spouse should not have to provide financial support for you when you are living with another adult who can theoretically provide the same type of support. If you are currently receiving spousal support as a dependent spouse, but then begin cohabitating with your dating partner, spousal support will typically terminate.
If you are the supporting spouse and find out that your former spouse who receives spousal support/alimony has begun cohabitating, you can request that alimony be terminated.
Lindsey Dasher is the Managing Partner at Dasher Law PLLC
416 W. John St.
Matthews, NC 28105
Monday-Thursday 8:30 a.m. - 5 p.m.
Friday 8:30 a.m. - 2 p.m.
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