Jim Siemens

Certified Family Law Specialist

When we accept a case involving separation, we typically contemplate guiding our clients down one of two roads: 1. negotiation of a separation and property settlement agreement without court involvement, or 2. filing a lawsuit.  Here we address the first of these roads.

WHAT IS SEPARATION? In North Carolina, you do not need to have any specific form or paper in order to be legally separated.  Legal separation occurs when one spouse leaves the marital home and stops living together under the same roof with his or her spouse.  At separation, at least one party must have the intent of remaining separate and apart.  This “intent” does not mean either party can’t hope for reconciliation under better circumstances, but it does mean that separate households are being created for the foreseeable future. The law presumes that spouses have separated when there is an obvious change in living arrangements and one spouse’s intent to remain separate is expressed.

AGREEMENT TO SEPARATE VS. SEPARATION AND PROPERTY SETTLEMENT AGREEMENT: WHICH ONE AND WHY?   It is best for spouses to separate after having discussed and negotiated a written agreement to separate that both have signed in front of a notary.  This type of written agreement, referred to as a “Consent to Separate” or “Separation Agreement”, typically states that the parties have agreed to live separate and apart, as if unmarried, and that neither will accuse the other of “abandoning” the marriage.   This agreement to separate can be as simple as that, or it can be part of a more detailed contract that addresses property settlement, child custody and support and spousal support and alimony.  We call an agreement to separate, which includes these additional provisions a “Separation and Property Settlement Agreement”.

When spouses can successfully negotiate a complete Separation and Property Settlement Agreement, they can avoid the expense and uncertainty of involving a Court in deciding matters highly personal and complex matters.  Spouses who reach agreements ideally understand what to expect from each other so they can go more easily go about the process of reorganizing their lives.  The only thing typically left for those spouses to do is to file for divorce at the conclusion of one continuous year of separation.

HOW CAN YOU HELP ME WITH THE SEPARATION AND PROPERTY SETTLEMENT AGREEMENT?  We begin the process of preparing a separation agreement by carefully listening to you in order to clearly understand your concerns and goals.  We will understand the economics of the marriage, the needs of children and the nature and extent of the marital estate.  Once we have an understanding of these things, we can put the framework of an Agreement together.

In the process of generating the property settlement portion of an agreement, we may ask you to bring us documentation, including mortgage, credit card, retirement, brokerage and bank statements.  If you or your spouse owns a business, we may involve a CPA to understand and value the business.

If it can be done in a calm and rational manner, we encourage you to negotiate with your spouse as we prepare agreements so that the Agreement we prepare is one that is likely to be signed.  Negotiation can occur at the kitchen table, at settlement conferences in our offices, through mediated settlement conferences in mediators’ offices, or by and through attorneys.  Agreements that both spouses have participated in generating, and fully understand, are typically durable and enforceable.