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Why Should I Enter a Separation Agreement?

Questions. Answered

Although they may not be the right option for everyone, a separation agreement can present a variety of advantages to divorcing couples—provided they can reach a mutually acceptable agreement about divorce-related issues.

The advantages of a separation agreement:

Control is perhaps the greatest advantage of using a separation agreement—especially regarding matters such as child custody, alimony, and property distribution. In North Carolina, a separation agreement is private contract between the divorcing spouses. The divorcing spouses – with the help of their attorneys – negotiate and decide the terms of the divorce on their own. If there is no separation agreement, you’ll likely end up in Court, and a judge will decide the outcome.

When a divorcing couple is able to reach a separation agreement that is acceptable to both parties, the court has no say on decisions related to the family’s future; in fact, the court does not even have to approve the separation agreement. The court is only involved in entering the final divorce order.

The separation agreement is treated like a contract and can be enforced by any court in North Carolina, or any other state, through an action for breach of contract. The court does retain some discretion to modify the separation agreement’s terms regarding child custody, and sometimes child support, if the court finds that they are not in the best interests of the child. However, under North Carolina law, the terms are presumed to be fair and reasonable unless shown to be otherwise.

Because the divorcing couple determines the terms of their separation agreement – not the court – there is an opportunity to come up with creative solutions to problems that address the each spouse’s interests and concerns. The result can be a custom divorce agreement that works for you, your spouse, and your children, instead of a decision made by a judge who doesn’t have a deep understanding of your individual circumstances.

Avoiding litigation and the stress that accompanies sharing intensely personal details in court, is another major advantage of negotiating a separation agreement. Furthermore, litigation can also be hard on you and your children—even if they aren’t called to testify in court.

Remember, you don’t have to work out the key issues of your separation agreement on your own. You should get help from a qualified divorce attorney, and may also wish enlist the service of a family law mediator who can help you and your spouse come to an acceptable resolution.

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