Requirements for a Valid Separation Agreement


Separation agreements are critical documents in the event a husband and wife end marital relations. It is very important to ensure the separation agreements are drafted correctly. Separation agreements must follow specific North Carolina requirements to be enforceable.

In North Carolina, a separation agreement must follow certain rules to be valid and enforceable. Initially, the husband and wife must have already separated, or at the very least, separation must immediately follow the execution of the agreement. North Carolina has begun allowing a separation agreement to remain enforceable even if parties are not separated at the moment of its inception. This only recently became allowed.

Separation agreements must be created for proper reasons. They cannot be drafted for any malicious purposes; it must be under circumstances that render it reasonably necessary to the health or happiness of the parties. The separation agreement must be just and fair to the wife and take any specific circumstances and conditions into consideration in the drafting of the separation agreement.

A separation agreement must also conform to the specific statutory requirements where property rights are involved. For example, when dealing with real estate and property, there are many nuanced and specific rules that must be followed.

North Carolina also requires that separation agreements be in writing and notarized by a certifying officer. It is important to ensure that the notary is not a beneficiary or a party to the agreement. To include a stipulation that either spouse may convey property without the consent or joinder of the other, the separation agreement or property settlement agreement must specifically include a provision allowing such conveyances to take place.

Separation agreements may be created and executed in conjunction with a property settlement of the parties, but there are some very important distinctions between property settlement agreements and premarital or separation agreements. A husband or wife may have their obligations under a property settlement agreement discharged by bankruptcy, whereas child support and alimony cannot be. The obligations under a property settlement agreement will last even after death or remarriage but alimony will generally terminate upon remarriage or death. Payments made pursuant to a property agreement cannot be modified without the consent of both parties, but if payments are considered alimony, they may become modifiable if the agreement is ever incorporated into a court order or judgment. Lastly, should a husband and wife resume their marital relations, most provisions in the separation agreement will become unenforceable, whereas the property settlement agreement will stay enforceable.