If you and your spouse are considering a dissolution of your marriage, knowing what next step to take can be a challenge. In some cases, a separation might be a better option than starting divorce proceedings. The attorneys at Lehnhardt Price Family Law serve the Weddington, North Carolina area and understand that handling this kind of claim shrewdly and with care is important for you and your family. We can help you determine whether legal separation is the right path for you.
Legal separation differs from divorce in a few ways. Unless the couple have an agreement in place, the court will determine the rights and duties of the couple while they are still considered legally married. Legal separations aren’t common, but they can be the right decision for couples who are considering divorce or know that they will eventually divorce and want to start the process of dissolution.
A separation agreement is a private contract between two spouses who either plan to separate soon or are currently separated. A separation agreement is comprised of the terms that are agreed upon by the spouses regarding debt, retention of the marital home, custody agreements, and more.
What goes into a separation agreement is dependent upon the two parties and the terms that they choose to set. They can be very detailed and complicated or limited in scope. While each couple and their needs are different, some of the most common terms are as follows:
In a divorce, the marriage is fully and legally dissolved. The two parties are no longer united in marriage, and the state will not consider them as such. All assets and property distribution have been established, as well as issues involving custody.
In a separation, the two parties are still united in marriage but are living separately. There are legal distinctions between trial separation and permanent separation. Your attorney can help you determine what your next step is if you are considering separation.
In North Carolina, a separation agreement isn’t necessary to be considered legally separated. To be viewed as legally separated, the parties must be living separately in different households. A separation is not valid if the two parties are still living together.
The two parties must also be currently living separately or plan to live separately immediately after the execution of the separation agreement. While there is no specific definition of what “immediately after” means in terms of the law, best practice would be to sign the separation agreement after the two parties are living under separate households.
Furthermore, at least one of the parties must consider the separation permanent or intend to remain separated. There are several reasons married couples would choose a separation over a divorce, such as religious objections, thoughts they may reconcile in the future, or insurance-related concerns. Separations are less formal than divorce and are typically reversible.
Separation agreements are decided upon by both parties. While the law doesn’t require a separation agreement, in the case where there are children, debts, and significant amounts of property, a contract defining the division of property and custody protects both parties. A verbal agreement cannot be enforced. A separation agreement is only valid if it is signed by both parties and notarized, as it must be an accepted agreement between both signers.
A separation agreement may not be right for every situation; however, it does help to protect your rights now and in the future. In the event that the separation ends in a divorce, having a legal separation agreement in place before the proceedings can mean an easier process.
Another major advantage to a separation agreement is the lessening of stress on children and families of the parties. Having a separation agreement in place at the time of a divorce can make the proceedings end more smoothly and without unnecessary hardship on those intimate to both sides.
After one full year of separation, the parties are eligible to apply for and begin divorce proceedings. With all the terms of the separation agreement in place, this can be a much less difficult process, and the parties will already have an outcome that is favorable to both.
Having a separation agreement in place is a good practice for anyone who is planning to separate from their spouse. Not only will this protect you and any children shared between you and your spouse, but it may also help alleviate any undue stress in the future.
Here at Lehnhardt Price Family Law, we understand that this can be a difficult time for you and your family. That’s why we take a personalized and expert approach to separation and separation agreements. Contact us today with any questions to begin this significant process.