If you are considering separating, or have recently separated from your spouse, we recommend that you consult with one of our experienced Triad family lawyers. Going through a separation, whether amicable or contentious, can be an overwhelming process. At Garrett, Walker, Aycoth, & Olson we are happy to guide you through this stressful time. Our Greensboro family law attorneys can counsel you on ways to protect (1) yourself, (2) your children, and (3) your assets, both prior to and after a separation. We can also help initiate the process of settling other issues related to your separation such as child custody, child support, alimony, and equitable distribution.
Am I legally separated? Do I need a legal separation?
Potential clients often call our Greensboro law firm requesting advice on “making their separation legal.” It seems to be a common myth that spouses can’t be “legally separated” without a written document. This isn’t true. In the eyes of the law, spouses’ separation occurs when 1) the spouses begin to live separate and apart from one another (e.g. one spouse moves out of the marital home) AND 2) there is intent on the part of at least one spouse to end the marital relationship. When these two conditions occur, parties are separated and the one-year waiting period required before an absolute divorce can occur begins. However, it is always a good idea to consider a Separation Agreement.
What is a Separation Agreement?
A Separation Agreement is a contract between spouses that determines their rights and responsibilities after separation. Separation Agreements allow the parties to negotiate a settlement that they believe to be fair, equitable, and less costly or time consuming than formal litigation.
Do I need a Separation Agreement?
There are numerous reasons why entering into a separation and property settlement agreement upon or shortly after separation from a spouse is prudent. In addition to being a cost effective and private way to settle issues such as property division, spousal support, child custody, and child support, Separation Agreements typically address ancillary topics such as inheritance rights, future debts, and pre-divorce purchases of real property.
- Inheritance rights
Under North Carolina Law, marriage and divorce both affect a spouse’s inheritance rights, but absent a Separation Agreement, living apart does not. Each person in a marriage has a right to inherit real and personal property from the other. This is true whether or not the deceased spouse had a will. If one spouse dies without a will, the surviving spouse is entitled to a share of the deceased spouse’s property. The amount of money, personal property, or real estate the surviving spouse will receive is based upon the value of the estate and the existence of other surviving relatives. The surviving spouse is entitled to the share even if the spouses had been living separately, intending to get divorced. The right to inherit from a spouse only terminates upon absolute divorce or upon waiver or release by agreement.
A separation agreement waiving inheritance rights is equally as important when one or both spouses has a written will. Absolute divorce will automatically revoke any provisions of a written will granting property to the deceased’s former spouse. Separation, absent an agreement, will not.
“What if my will doesn’t give my spouse anything?” you may ask. North Carolina law and public policy prevent one spouse from disinheriting the other entirely. In other words, even if the deceased’s will gives his or her spouse nothing, the surviving spouse still has a right to a share of the estate.
- Future Debts (Doctrine of Necessaries)
Under the doctrine of necessaries, a spouse can be held liable for debts incurred by the other spouse after separation if the debts were incurred for necessary expenses. Necessary expenses typically include food, shelter, and medical care. It does not matter if the non-purchasing spouse agreed to pay the debt or not. Spouses can limit liability for necessaries by entering into a Separation Agreement and providing written notice of their separation to providers of necessary goods and services
- Purchases of Real Property (Freetrader Agreements)
A free trader agreement can be executed by separated spouses either as a part of a Separation and Property Settlement Agreement or as its own separate document. Once signed by both spouses, it allows either to purchase land as if that spouse were single and unmarried and as if the marriage between the parties had never taken place. A free trader agreement ensures that the non-purchasing spouse has no interest in the property the other spouse purchases. Many lenders require such an agreement so that the non-purchasing spouse cannot later claim an interest in the property as a result of the marriage.
My spouse’s attorney has already drafted a Separation Agreement, should I sign it?
If your spouse hires an attorney to draft a Separation Agreement, signing their draft of the Agreement will obligate you to its terms, even if you did not seek your own legal counsel. Moreover, your spouse’s attorney has your spouse’s best interest in mind, not yours. We highly recommend consulting with your own lawyer before entering into an agreement that may control the time you spend with your children, the marital property you receive, the debt you may be obligated to pay, and the ongoing support obligation you may. It is best to reach out to an experienced family law attorney to make sure (1) that you understand the consequences of the agreement (legally and practically), (2) that your well-being and interests will not be unfairly prejudiced, and (3) that the questions you have about the Agreement are answered. The family law attorneys at Garrett, Walker, Aycoth, & Olson are here to help.