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FREQUENTLY ASKED QUESTIONS REGARDING MARITAL SEPARATION AGREEMENTS IN NORTH CAROLINA
- Are Separation Agreements Enforceable Under North Carolina Law?
Yes. The North Carolina General Statutes explicitly authorize married couples to enter into separation agreements. Specifically, Section 52-10.1 of the Statutes states as follows:
§ 52-10.1. Separation agreements.
Any married couple is hereby authorized 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). Such certifying officer must not be a party to the contract. This section shall not apply to any judgment of the superior court or other State court of competent jurisdiction, which, by reason of its being consented to by a husband and wife, or their attorneys, may be construed to constitute a separation agreement between such husband and wife.
- What Are the Benefits of Entering into a Marital Separation Agreement?
By setting forth your agreement on issues such as the distribution of marital property, alimony, and child support, you can substantially reduce the cost and time required to obtain a divorce. You can also avoid the stress and uncertainty of having complete strangers decide these important issues. In addition, couples frequently find that by entering into an agreement, they decrease the bitterness and animosity that frequently arises in divorce. Several studies have shown that on average, couples who sign marital separation agreements reduce the cost of divorce by more than 65%.
- When can a Couple Sign a Marital Separation Agreement?
A marital separation agreement may be drawn before or after you have filed for divorce ? even while you and your spouse are still living together.
- What Happens if a Husband and Wife Choose to Reconcile (Continue Living Together as Husband and Wife) After they have Signed a Marital Separation Agreement?
This issue has been dealt with on several occasions by the North Carolina courts. In general, a separation agreement will not be enforceable if the parties have actually reconciled after executing the separation agreement. The most recent North Carolina court decision addressing reconciliation after the execution of a separation agreement was issued in 2004 by the North Carolina Court of Appeals. The Court held as follows:
Under N.C. Gen. Stat. § 52-10.1, married couples may execute separation agreements, however the executory terms of a separation agreement are terminated upon the "resumption of the marital relation." In re Estate of Adamee, 291 N.C. 386, 391, 230 S.E.2d 541, 545 (1976). N.C. Gen. Stat. § 52-10.2 defines the resumption of marital relations as the "voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. Isolated incidents of sexual intercourse between the parties shall not constitute resumption of martial relations." N.C. Gen. Stat. § 52-10.2 (2003). The cases that apply this statute address whether married couples have reconciled and resumed cohabitation by looking at the particular circumstances that evidence a husband and wife relationship.
Oakley v. Oakley, 165 N.C. App. 859 (2004).
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