Contrary to popular belief, it is not necessary to have a separation agreement in order to establish your separation or to obtain an absolute divorce in North Carolina. A separation agreement is helpful to parties who are about to separate, or have already separated, and want to have their legal relationship defined in an agreement that is legally enforceable. If you have already been separated for more than one year, it may be less expensive to move forward with an action for absolute divorce rather than going to the trouble of having your attorney prepare a separation agreement. It is necessary for parties to live separate and apart once they have a separation agreement. A resumption of the marital relationship will void all executory provisions of a separation agreement. A separation agreement may also include a property settlement agreement, where the parties have property or debts that needs to be divided or distributed to one party or the other, and the separation agreement may also include a parenting agreement that defines the parenting schedule for custody and visitation as well as responsibility for child support. You are invited to inquire about separation agreements, property settlement agreements, and parenting agreements when you discuss your separation issues with the attorney. Separation agreements are generally much less expensive than going through court proceedings.

If you need a separation agreement, contact Mr. Kelso in advance of your appointment and obtain a Worksheet for Separation Agreement so that you will have all the necessary information at the time you meet with him.

    The following rules will help you and your spouse in working together to gather information and to reach points of agreement so that an agreement can be executed:

    1. Agree that having a written agreement will help both you and your spouse avoid the expenses, lost time, stress, and uncertainty associated with court proceedings;

    2. Agree to read these rules before beginning the process, and if either or both of you become stuck at some point, read these rules again;

    3. Agree that full disclosure of all financial information to both parties is necessary to reach a fair agreement;

    4. Agree that neither you nor your spouse is expected to engage in confession of or disclosure of marital misconduct during this process;

    5. Agree that this process is not confidential and that all information accumulated during your discussions will be provided to both parties to give to their respective attorneys should court proceedings become necessary;

    6. Agree to lay aside any personal differences that you and your spouse may have and understand that you and your spouse will be required to compromise on some points to reach a fair agreement;

    7. Agree that both you and your spouse will be kind, patient, and keep emotions in check at all times during the negotiations. Agree that neither you nor your spouse will engage in physical threats, intimidation, or violent conduct. If the later occurs, discontinue the negotiations immediately and contact your attorney(s);

    8. Agree that working on your agreements can cause emotional and physical fatigue. It is important that breaks be taken during the process. This is particularly true if an emotional outburst occurs, or discussions become deadlocked or heated. Coming back to the discussion after a period of reflection and rest can be quite helpful;

    9. Agree that both you and your spouse will lay aside her or his personal desires and differences with respect to the minor children, understanding that what is in the best interests of the minor child or children is the principle that must guide the negotiations. Avoid the use of terms like "I want/refuse," "you should/will," or "my children," as these terms tend to inflame the other spouse. Use instead language such as "can we agree that," "another alternative might be to," and "our children;"

    10. Agree to find common areas of agreement first. For instance, "can we agree that during the summer months the children might like spending equal time with both parents?" This will provide momentum when dealing with more difficult issues;

    11. Agree to break-down more difficult issues into parts so that they can be divided into parts where there is agreement and parts where there continues to be disagreement;

    12. Agree to write down areas where there is agreement and areas where there is disagreement;

    13. Agree that where there is disagreement, the parties will seek help from a third party (attorney, counselor, or mediator) to help them resolve the disagreement, either with or without an attorney; and,

    14. Agree that both parties are usually unhappy with the terms of a fair agreement. So just because you or your spouse are both unhappy with various provisions in your agreement, this does not mean the agreement is inherently unfair to either or both of you.

   15. Do not attempt to write out the terms of the agreement and sign them on your own. Agree that a rushed agreement may result in an invalid agreement. Have your attorney prepare the written agreement. Discuss its provisions to make sure you fully understand the legal consequences of your negotiated written agreement.

If you and your spouse cannot agree to follow these rules for gathering information and negotiation, then efforts to reach an agreement should be conducted through attorneys, counselors, or mediation services.

Courtesy of the Christian Family Law Association

The fee for preparing a written separation agreement is $250.

If a property settlement agreement is included, the fee is $500.

If a parenting agreement is included, the fee is $750.

Call Mr. Kelso for an appointment today.

Phone:

704-865-8684