Charlotte Separation Agreement Attorney
Understanding Separation & Divorce in North Carolina
North Carolina law allows married persons to enter into a contractual agreement
to resolve all of the rights which arise out of marriage. This contract
is often referred to as a Separation Agreement.
To be valid in North Carolina:
- The agreement must be acknowledged in writing
- The Separation Agreement must not be inconsistent with public policy
- The agreement must be signed by both spouses before an authorized notary public;
- The agreement must be executed after the parties have physically separated
from one other or must be executed in anticipation of immediate separation.
The primary purpose of a Separation Agreement is to set forth the parties’
intent to live separate and apart thereafter and to document any agreement
reached on the marital rights created as a result of marriage, which include
settlement of marital property (also known as
spousal support and alimony,
child custody, and
For help creating a separation agreement that protects your best interests, call
the attorneys of Miller Bowles Cushing at (704) 810-1400.
What is “Separation” in North Carolina?
In North Carolina, legal separation occurs when a husband and wife physically
separate from one another and at least one person does so with the intent
to live separate and apart from the other thereafter. Many people assume
a written document is necessary to be “legally separated”
under North Carolina law, but there is no such requirement.
There are two key takeaways for the requirements of separation that often
- First, you must live apart from your spouse to be considered separated.
Sleeping in different bedrooms or even sleeping in a basement does not
constitute separation. The Court has even found that a spouse living in
a detached garage apartment was not separated because they regularly entered
the former marital home. The best way to establish separation is for one
spouse to physically move out of the home.
- Second, only one spouse must intend for the parties to remain separate
and apart thereafter. If one party does not wish to be separated, they
cannot withhold approval of the separation after different residences
What is Divorce from Bed & Board?
Divorce from Bed and Board creates an exception to the “separate
and apart with the intent to remain separate thereafter” standard.
With a finding of fault, the Court can grant a request for Divorce from
Bed and Board, which establishes a date of separation whether physical
separation has occurred or not. This claim does not dissolve a marriage
but allows for the establishment of a date of separation and if commonly
used in cases where finances prevent a physical separation, but fault
can be proven.
Marital Separation Agreement Attorney
Because a Separation Agreement may not include terms inconsistent with
public policy, spouses may not agree and a Separation Agreement may not
include, for example, a waiver of child support when a child or children
are clearly in need of financial support from one parent.
Many people seek a Separation Agreement as a time-saving and cost-effective
method to resolve all of the rights arising out of marriage in lieu of
filing a lawsuit and pursuing a judicial determination of each issue,
which can often take months or longer and be an expensive endeavor.
While a Separation Agreement can save substantial time and expense as compared
to litigation, it is a mutually-entered contract which requires agreement
by both parties, one of the elements that differs from
divorce. No one can force the other party to execute a Separation Agreement, so
even with the best intentions, one spouse may obstinately refuse to reach
a settlement of all marital issues.
Breach of Contract
A Separation Agreement is an enforceable contract; however, its enforcement
mechanisms differ from a court decision and court order. The most common
recourse if your spouse violates the Separation Agreement is to file a
lawsuit for breach of contract and request the court order he or she to
specifically perform as provided in the Separation Agreement. In many
cases, this court process can take months, if not a year or more before
resolution, making all the more important to have an attorney assist you.
Contact Us Today for Help Drafting an Agreement
The separation agreement attorneys at Miller Bowles Cushing can help you
determine whether a separation agreement is necessary in your case, and
if one is, can draft and negotiate the terms of the agreement. We have
a notary public on staff who is available to certify your signature on
To schedule a
confidential consultation with a attorney in Charlotte about further Separation Agreement, please
contact us here at Miller Bowles Cushing. Call us at (704) 810-1400.