Separation Agreements

What is a Separation Agreement and Does it have to be Approved by the Court?

A “separation agreement” is a contract between the parties to a divorce that recites the agreements reached by a divorcing couple relative to any or all of the issues surrounding the end of a marriage. Separation agreements can be as simple as establishing that the parties to a marriage have mutually agreed to live separate and apart from one another and to eventually divorce but often also dispense with complex matters including child custody and support, alimony, and division of marital assets as well as marital debt. The separation agreement should include all matters upon which the parties are able to agree, irrespective of whether agreement was obtained through mediation or by other means. 

Separation agreements can preserve the privacy of divorcing spouses while narrowing the issues for consideration by a court in a trial for divorce. Chief among its advantages, separation agreements are private contracts rather than the typically public matter that is an order of the court. In North Carolina, it is not required that a court review or approve separation agreements in divorce cases. If, however, the separation agreement fails to address all of the issues related to the matters involved in ending a marriage, parties will be barred from asserting additional claims after judgment of divorce has been entered by a court.  It is essential that your separation agreement address all the issues surrounding your divorce, including alimony, assignment of marital debt, and division of marital property. Prior to entry of a judgment of divorce, separation agreements can be amended or considered by the court if necessary.

While separation agreements can remain private but enforceable contracts between divorcing spouses, the agreement may specify or either party may request that some or all of the provisions of the separation agreement be merged into a final judgment of divorce.  Merging a separation agreement into the terms of a divorce judgment gives the court continuing authority to enforce or modify provisions of the agreement in the future as circumstances change and need arises by the parties. Advice from an attorney knowledgeable about separation agreements and divorce provides you the best foundation for consideration of which, if any, of the provisions of your underlying agreements should also be included in your judgment of divorce. Those provisions of your settlement agreement that you and/or your spouse do not wish to be subject to modification and therefore not included in a judgment of divorce, remain legally enforceable under contract law, the remedy for which is enforceable by an action for breach, for specific performance, or other remedies that may otherwise be specified in the separation agreement itself.