Legal Separation & Separation Agreements

Legal Separation & Separation Agreements


Everything you wanted to know about legal separation and separation agreements in North Carolina:

A question we often get at our office is what are the legal requirements for separation and separation agreements in North Carolina. So, here’s a short article from our separation agreements lawyer to help you understand what is (and is not!) required for a legal separation and separation agreements in North Carolina.

  1. You must live separate and apart. That means you cannot live in the same house – even if he (or she) is sleeping permanently in the guest bedroom/couch/doghouse, that doesn’t count. Generally speaking, moving out of the house and getting their mail at a new location is what it takes.
  2. You must intend to live separate and apart. Example: The wife goes on vacation to “take time to think about things on January 1. On January 7, while still on vacation, she decides she is finished and can’t take it anymore, so she calls and gets an apartment, which she moves into at the end of her vacation on January 14. What is the date of separation? January 7. Why? Because at that point, she decided to live separate and apart, and was out of the marital residence.
  3. That’s it. Once one spouse leaves, with the intent to be gone and to break off the marriage, that’s enough.
  4. But don’t I need a written agreement? Nope! While a written agreement is a great thing – it can deal with child custody, support, alimony, who gets what, etc., it is NOT required to be “legally separated” … You can be legally separated with or without an agreement.
  5. Do I have to have something filed at the Register of Deeds? (Keep reading!)
  6. If my ex and I reach an agreement, do we have to file it with the Register of Deeds? No! As a matter of fact, you probably should NOT file such an agreement at the Register of Deeds, because then it permanently becomes a public record. Did you put your maiden name in their? What about your bank accounts and/or account numbers? What about the value of your bank accounts or your retirement plans? The child custody schedule that you’ve agreed to? Would you want a stranger to know all of those details? NO! Once you file it, you can NOT undo it. There’s no magic “delete” button, even if you both agree.

Requirements for Separation Agreements

So what are the basic requirements of a separation agreement?

    1. First, you need to write out the terms you each agree to.
    2. Second, both of you, at a minimum need to sign the agreement.

So that’s it? Yes!

    1. But what about a Notary? Having the signatures notarized is a GREAT idea and highly recommended. While it isn’t required, it also keeps either of you from stating “I didn’t sign that” or “they forged my signature”.
    2. What about filing it? You CAN file it, but as we said above, you probably shouldn’t. First, you might change your mind about things such as custody or child support, and you also probably don’t want all those details made public. What you CAN file (and sometimes banks will require you to file for loan purposes) is a “Memorandum of Separation Agreement”, which basically states that you agree that you separated on a certain date and reached an agreement about things on certain date. This gives the banks and general public legal notice that you have separated and are no longer joint on financial transactions, etc.
    3. Do I HAVE to have a separation agreement? No, of course not! It is recommended, but if you don’t have any property to divide, no children and nobody wants any support, it isn’t as urgent.

So if I have no children, property to divide, and don’t want any support, why might I still want a separation agreement?

    1. A good separation agreement will have each spouse indemnify the other from any new debts, which means you won’t have to pay for your ex’s credit card, for example.
    2. A good separation agreement will waive rights in each other’s estates. Meaning, if one of you passes away, the other person waives their inheritance rights, as well as the right to be the executor. While we’ve personally witnessed cases where a separated spouse has served as the executor of an estate because there was nobody else available in state to do so, most of the time somebody who passed away probably doesn’t want their ex-spouse handling their estate (and the ex-spouse probably doesn’t want to do it, either!
    3. A good separation agreement will indemnify the other from accidents, etc. For example, what if one of the spouses, in the wake of the breakup, heads to the bar, has too much to drink, and wrecks their vehicle, causing injuries to other parties? Indemnification will help protect you in the event of a lawsuit.

Follow up questions we usually get – about divorce:

  1. How long do we have to be separate and apart? You have to be legally separated, (living separate and apart) for a year plus a day, or 366 days. We advise folks to file no early than a year plus 3 days, which gives a slight bit of wiggle room.
  2. You can NOT have “re-consumated” the marriage; if you did, you may end up resetting the legally separated for year and a day clock. If this applies to you, be sure to tell your family lawyer.

But can’t we just “agree” on a date?

Sure – but there’s a risk of one of you later changing your mind and actually asking the court to “set aside” the divorce – which means any later marriage would be void, PLUS you could face potential sanctions or charges for perpetuating a fraud on the court. Our advice? Wait the extra days or months so you don’t risk it. Sanctions/criminal charges/fraud on the court all spell extra trouble and expensive legal fees – don’t risk it.

Did you find this information helpful? Please be sure to let us know what other questions you have, so we can make sure our blog posts are useful!  If you need help, or have more questions about legal separation, separation agreements, and/or divorce, contact one of the attorneys at Apple Payne Law, PLLC for a consultation. We offer one-hour consultations both in person, and over the phone, to help give you the legal advice you need. From there, we can see if you need our assistance, can handle it yourself, or need to file suit.


Author Bio

Ronald D. Payne II
Ronald D. Payne II is the CEO and Managing Attorney of Apple Payne Law, a North Carolina law firm he founded in 2018. With more than 11 years of experience practicing law, he is dedicated to representing clients in a wide range of legal matters, including business law, estate planning, family law, probate, and traffic law.

Ronald received his Juris Doctor from the Wake Forest University School of Law and is a member of the North Carolina Bar Association. He has received numerous accolades for his work, including being awarded the 2020 Client’s Choice Award by Avvo and multiple Rising Star awards from Super Lawyers.

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