Separation agreements in Charlotte, North Carolina

Many times individuals call our office in Charlotte, North Carolina, confused about what exactly they must file to obtain a “Legal Separation.” In actuality, under North Carolina Law two parties are legally separated the day that they physically reside in separated residences and no longer possess the intent to resume marital relations.

Once a spouse moves out of the marital residence, the North Carolina one year statutory requirement for a divorce begins to run. However, with this being said, there are many rights that a spouse must preserve by filing specific actions prior to the date a divorce judgment is entered. A spouse may deal with these issues in court through expensive litigation; however, they may also enter into a Separation Agreement or Property Settlement Agreement, where two clients seek the assistance of one attorney, or two attorneys work together to avoid expensive litigation.

Spouses who are able to enter into a Separation Agreement will benefit greatly by the effectiveness and legally efficient characteristics of a Separation Agreement. In its truest form, a Separation Agreement is a contract between spouses that allows them to deal with all the legal aspects of divorce, such as: the distribution of assets, the possibility of spousal support, child custody and child support, and to the disposition of assets. It is often best to meet with a Charlotte Family Attorney and attempt an amicable resolution to the dissolution of a marriage by drafting a Separation Agreement. Sheehan today at (704) 222-4752 and speak with an Attorney to see if you can benefit from a Separation Agreement.

What this covers

• Is a Separation Agreement Right for Me?
• Do I Have to Disclose All My Assets in Negotiating a Separation Agreement?
• Can I Change the Terms of a Separation Agreement in North Carolina After it is Signed?
• What Happens if Someone Doesn’t Follow the Separation Agreement?
• Can I Change the Terms of a Separation Agreement in North Carolina After it is Signed?
• Do I Have to Disclose All My Assets in Negotiating a Separation Agreement?
• Is a Separation Agreement Right for Me?
• What Happens if Someone Doesn’t Follow the Separation Agreement?

North Carolina issues no decree of legal separation

In North Carolina there is no petition for legal separation, no hearing on it, and no order a clerk can produce showing that a couple is separated. Separation is a fact rather than a status conferred by a court. It comes into existence when the spouses live in separate residences and at least one of them intends that the separation be permanent, and nothing is filed in Mecklenburg County or anywhere else to bring it about.

The nearest thing North Carolina law has to a court-declared separation is divorce from bed and board. Under G.S. 50-7 a court may grant one on the application of the injured party where the other spouse “[a]bandons his or her family,” “[m]aliciously turns the other out of doors,” “[b]y cruel or barbarous treatment endangers the life of the other,” “[o]ffers such indignities to the person of the other as to render his or her condition intolerable and life burdensome,” “[b]ecomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome,” or “[c]ommits adultery.” The statute is permissive throughout — proof of a ground opens the remedy rather than compelling it. A divorce from bed and board is a judicial separation only. It does not dissolve the marriage and neither spouse may remarry on the strength of it.

The date of separation is the date that does most of the legal work

In North Carolina the date of separation fixes several things at once. It closes the class of marital property, which G.S. 50-20(b)(1) defines as “all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned,” subject to the separate and divisible property categories. It sets the valuation date, because G.S. 50-21(b) values marital property as of the date of separation. And it starts the one-year period that G.S. 50-6 requires before an absolute divorce can be granted.

Because so much turns on the date, the General Assembly defined what undoes it. G.S. 52-10.2 provides that “‘[r]esumption of marital relations’ shall be defined as voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances,” and that “[i]solated incidents of sexual intercourse between the parties shall not constitute resumption of marital relations.” North Carolina courts read that against the objective indicia — whether the spouses shared a residence, shared household responsibilities, and held themselves out to others as husband and wife.

What happens after separation is not simply ignored. G.S. 50-20(b)(4) creates a third category, divisible property, which captures appreciation and diminution in the value of marital property occurring after separation and before distribution — except changes that are the result of a spouse’s own post-separation actions or activities — along with property received after separation that was acquired through efforts made during the marriage and before separation, passive income from marital property such as interest and dividends, and passive increases and decreases in marital debt.

One year’s separation is the ordinary ground for absolute divorce in North Carolina

G.S. 50-6 states the rule directly: marriages may be dissolved “on the application of either party, if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months.” No fault need be pleaded and no misconduct need be proved. The separation itself, held for the statutory period, is the ground, and the same section provides that isolated incidents of sexual intercourse between the parties do not toll the one-year period.

G.S. 50-8 governs what the complaint must contain. It must be verified in accordance with Rule 11 of the Rules of Civil Procedure and G.S. 1-148, it must show the six months’ residence, and it “shall set forth the name and age of any minor child or children of the marriage,” or state that there are none. An absolute divorce action between Charlotte residents is filed and heard in Mecklenburg County District Court.

Several claims end at the divorce judgment unless they are made before it

This is the reason the sequence of steps matters in North Carolina. G.S. 50-11(e) provides that an absolute divorce obtained within this State destroys the right of a spouse to equitable distribution under G.S. 50-20 unless the right is asserted prior to the judgment of absolute divorce. The statute leaves one way back in and it is a timed one: where service of process was by publication and the defendant failed to appear in the divorce action, the defendant may bring an action or file a motion in the cause for equitable distribution within six months from the date of the judgment. G.S. 50-11(f) does something comparable where the court that granted the divorce lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property — the right survives, but only if an action or motion is filed within six months after the divorce judgment is entered. Both windows close, and neither of them assists a spouse who was properly served, could have filed, and did not.

The claim is available long before that point. Under G.S. 50-21(a), “[a]t any time after a husband and wife begin to live separate and apart from each other, a claim for equitable distribution may be filed,” so nothing requires a separating spouse to wait for the divorce action to start.

Spousal support runs on the same logic. G.S. 50-11(c) preserves a spouse’s right to alimony or postseparation support where the claim was pending at the time the divorce judgment was granted, or where the right was already provided for by a judgment or decree rendered before or at the time of the divorce; it does not create a right that was never asserted. A separation agreement is one way of dealing with these claims before the divorce judgment closes them; filing the claims in the divorce action is the other.

What a separation agreement is able to settle, and what it is not

Property division is squarely within the parties’ power. G.S. 50-20(d) provides that “[b]efore, during or after marriage the parties may by written agreement, duly executed and acknowledged in accordance with the provisions of G.S. 52-10 and 52-10.1 … provide for distribution of the marital property or divisible property, or both, in a manner deemed by the parties to be equitable and the agreement shall be binding on the parties.” An agreement of that kind bars a later equitable distribution action over the property it covers.

Spousal support can be waived, but only in terms. G.S. 50-16.6(b) provides that “[a]limony, postseparation support, and counsel fees may be barred by an express provision of a valid separation agreement, premarital agreement, or marital contract made pursuant to G.S. 52-10(a1) so long as the agreement is performed.” In Napier v. Napier the Court of Appeals held that a blanket release of “all causes of action, claims, rights or demands whatsoever” did not waive alimony, because nothing in it referred to alimony specifically.

Children are the limit. Parents may contract about custody and child support, and those terms bind them as between themselves, but no agreement deprives a North Carolina court of its authority to determine what is in a child’s best interest. Where the parties have agreed on an amount of child support in an unincorporated agreement, Pataky v. Pataky establishes a rebuttable presumption that the agreed amount is just and reasonable; that presumption is rebutted by evidence measured against the reasonable needs of the child for health, education and maintenance under the first sentence of G.S. 50-13.4(c).

The execution requirements are statutory and a defect can void the agreement entirely

G.S. 52-10.1 authorizes “[a]ny married couple … to execute a separation agreement not inconsistent with public policy which shall be legal, valid, and binding in all respects; provided, that the separation agreement must be in writing and acknowledged by both parties before a certifying officer as defined in G.S. 52-10(b).” That certifying officer, under G.S. 52-10(b), is “a notary public, or a justice, judge, magistrate, clerk, assistant clerk or deputy clerk of the General Court of Justice,” or the corresponding officer of the state or country where the acknowledgment is taken, and the officer “must not be a party to the contract.”

North Carolina appellate courts treat this as a condition of validity, not a formality. In Sluder v. Sluder an agreement that neither party acknowledged before a certifying officer was held invalid and unenforceable as a matter of law, and in Kelley v. Kelley an improperly executed instrument was void ab initio, so that neither estoppel nor ratification could rescue it. In Raymond v. Raymond, where a husband added provisions after the wife signed and she never acknowledged the additions, the entire agreement was invalid.

• In writing — an oral separation agreement is not a separation agreement
• Signed by both spouses
• Acknowledged by both before a certifying officer under G.S. 52-10(b)
• The certifying officer must not be a party to the contract
• Consistent with public policy, and made while the spouses are separated or about to separate

One lawyer may not prepare a separation agreement for both spouses

Under the North Carolina Rules of Professional Conduct, a lawyer cannot act for both husband and wife in drafting a separation agreement. In 2019 Formal Ethics Opinion 1 the North Carolina State Bar considered a couple who agreed on terms and could not afford two lawyers, and concluded that a lawyer may not prepare the agreement for both of them: the spouses are legally adverse, there are numerous points on which the lawyer would be negotiating for one against the other, and Rule 1.7 treats that as a conflict the clients cannot consent to.

What this means in practice is that a separation agreement is normally drafted by a lawyer acting for one spouse, with the other spouse either separately represented or unrepresented. It does not follow that the arrival of a lawyer ends the confidential relationship between the spouses, or the disclosure obligations that go with it. Where a lawyer has acted only as a scrivener, recording what the spouses worked out between themselves, North Carolina courts have held that the confidential relationship does not end merely because the document was professionally drawn. Whether it has ended is a question about what the spouses were actually doing — whether they were dealing at arm’s length, through counsel, as adversaries — and it is taken up in more detail elsewhere in this section.

Reconciliation cancels the executory parts of a separation agreement

In North Carolina the agreement to live separate and apart is the consideration that supports a separation agreement, so when the spouses resume marital relations that consideration fails. In re Estate of Adamee and the cases following it hold that reconciliation voids the executory provisions — those in which a party bound himself to do or not do a particular thing in the future. Provisions already carried out, which require no further performance, are not affected.

Property settlements sit differently, because G.S. 50-20(d) allows spouses to divide property at any time and not only in contemplation of separation. A property settlement generally survives a reconciliation, unless it was negotiated as reciprocal consideration for the promise to live separate and apart, in which case its executory provisions fall with the rest. A later separation does not revive an agreement that reconciliation rescinded. G.S. 52-10(a1) creates one statutory exception, and it is confined to a particular subject matter: a contract made during a period of separation waiving, releasing or establishing rights to postseparation support, alimony or spousal support remains valid through a reconciliation and a subsequent separation if it is in writing, states the waiver clearly, and is acknowledged by both parties before a certifying officer. Nothing in that subsection preserves the rest of the agreement.

Incorporation converts the contract into a judgment, and changes both remedies and modification

A separation agreement submitted to and approved by a North Carolina court becomes a court-ordered judgment. Under Walters v. Walters the agreement is no longer treated as a contract between the parties; it loses its contractual nature, is superseded by the court’s order, and ceases to exist as an independently enforceable contract. It is then enforceable by the contempt powers of the court and by execution, and a party may no longer sue on it for breach of contract.

Modification follows the same divide. An unincorporated agreement can be changed only by consent of both spouses, in a writing acknowledged in accordance with G.S. 52-10.1. An incorporated agreement can be modified only so far as a statute allows. G.S. 50-16.9(a) provides that an order for alimony or postseparation support, whether contested or entered by consent, may be modified or vacated at any time upon motion in the cause and a showing of changed circumstances, and it does not apply to orders entered by consent before 1 October 1967. G.S. 50-13.7(a) puts custody and child support orders on the same footing, subject in the case of support to G.S. 50-13.10, under which each payment vests as it accrues. The verb in both statutes is “may”: a changed circumstance opens the door to modification rather than requiring it. Provisions dividing property are not modifiable in either form without the consent of both parties.

These disputes are heard in district court regardless of the amount involved

G.S. 7A-244 makes the district court division “the proper division without regard to the amount in controversy, for the trial of civil actions and proceedings for annulment, divorce, equitable distribution of property, alimony, child support, child custody and the enforcement of separation or property settlement agreements between spouses, or recovery for the breach thereof.” For couples who separated in Charlotte, that means Mecklenburg County District Court, whether the dispute is about a house, a retirement account or a missed support payment.

Where equitable distribution is litigated rather than settled, the statute imposes its own pace. G.S. 50-21(d) requires that within 120 days after the filing and service of the initial pleading or motion for equitable distribution, the party who filed it apply to the court for a scheduling and discovery conference, at which the court sets discovery deadlines and dates for pretrial conference and trial.

Common questions

Questions people ask

• Can I Change the Terms of a Separation Agreement in North Carolina After it is Signed?In North Carolina, the terms of a Separation Agreement like any other contract can be modified, changed or destroyed…
• Do I Have to Disclose All My Assets in Negotiating a Separation Agreement?Through a series of cases and case law in North Carolina, the North Carolina Court of Appeals and Supreme Court has…
• Is a Separation Agreement Right for Me?A Separation Agreement in its truest terms is an “Agreement.” In order for two parties to enter into any contractual…
• What Happens if Someone Doesn’t Follow the Separation Agreement?If a Party does not follow an obligation listed within a Separation Agreement, he or she will be in breach of contract…

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.