Absent an order for Divorce from Bed and Board (a rarely issued, court ordered separation), there is no such thing as "legal separation" in North Carolina.  When a married couple separates and at least one of them has the intention to divorce, the only requirement for divorce is separation for at least a year and a day.  Before or during the period of separation, issues between the spouses can be resolved using a Separation Agreement.  If they chose to, they can then use the agreement as the terms of their divorce.

A Separation Agreement, also known as a property settlement agreement or marital separation agreement, is a private, written, legally binding contract spelling out each spouse's rights, and settling issues between spouses who have or intend to separate and/or divorce.  Even if a divorce is not planned, and the separation is a "trial separation", a legal agreement between the spouses can be extremely valuable.  A Separation Agreement can resolve any issue the couple is willing to agree on, such as; child custody and visitation, child support, property division, alimony, how to treat future earnings, debt, insurance, inheritance, issues involving children's education, religion, and discipline, and intimate relationships after separation and prior to divorce.

There are many benefits for spouses willing to work out issues in a Separation Agreement:

• Cost - The cost to negotiate and draft a Separation Agreement is much less expensive than litigation (going to court).
• Flexibility - Spouses have the freedom to negotiate each issue and find creative solutions.  The spouses negotiating a Separation Agreement can specify conditions that a judge cannot.
• Privacy - Unlike court documents, a Separation Agreement is not public record and no one has access to the terms of your Agreement.
• Time - A court trial can be a long, involved, and time-consuming process.  Resolving issues through a Separation Agreement can save a significant amount of time.  Even if spouses can only agree on some of the issues, and request that the court decided the others, the time and money save is well worth the effort.

Separation Agreements should be drafted by a lawyer.  The experienced attorneys at Haas McNeil & Associates, P.A. will be happy to prepare a Separation Agreement for you, or review an Agreement drafted by someone else.

If you do not have a lawyer, and the Agreement was drafted by your spouse, your spouse's lawyer, or even by a mediator or lawyer/mediator who was hired by both spouses, you should always take any Agreement to a lawyer to have it reviewed before you sign it.  Once you and your spouse sign and have the Agreement notarized, it is binding. Unless the terms of the Agreement are unconscionable, or the agreement itself is a result of fraud, coercion, or duress, the courts tend to accept the terms as written. Attempting to have a Separation Agreement overturned is difficult.  The exception to this is when children are involved.  No Agreement between the parties can bind the Court in regards to support, custody, visitation rights, or the education of a child.

A Separation Agreement must be voluntary; neither party can be forced or coerced to sign an Agreement. It is important to understand that a Separation Agreement is not a court order and the court will not force your spouse to comply with the Agreement using contempt of court. To ensure compliance you may, however, sue your spouse for breach of contract if he/she violates the Separation Agreement.