Sometimes, the traditional image that people have when they envision the divorce process is two people battling it out in a courtroom – two adversaries fighting over their issues, each determined to prevail over the other, and to win at any cost. In fact, for most people, divorce looks very different now. Many choose to approach the divorce process collaboratively and cooperatively, based on the mutual knowledge that coming to an agreement that is satisfactory for everyone on the issues between them is the best path forward for their family.
This applies to the final settlement of divorce issues of course, but it also applies to separation agreements. More and more often couples are choosing, are they separate, to enter into a separation agreement that resolves temporarily at first – and perhaps later permanently – many of the issues between them. We receive several questions about separation agreements – about their content, about various ways in which they can be drafted, and about what issues are most important to address.
A few questions that we also commonly receive include, “How do I get my separation agreement signed? What makes it official? What do I do with it after it’s been signed?” These are all good question, and fortunately, they are questions that have simple answers.
In short, what you need to know about creating a binding separation agreement is the following:
- A separation agreement must be in writing: In North Carolina, in order to be legally binding, a separation agreement must be in writing. It cannot simply be a verbal agreement. Whether it is typed or handwritten is immaterial, as long as the wishes of the parties are actually expressed in writing.
- It must be signed by both parties: Until both parties have signed the agreement, is not officially considered to be a binding agreement. Both signatures are necessary, typically in duplicate – meaning that two copies of the agreement are signed at the same time. One copy is then given to the wife, and one to the husband.
- It must be notarized: In order to be considered an official legal document, the separation agreement must be signed in front of a notary. Fortunately, notaries are fairly easy to find. Lawyers will have notaries at their office, and many banks will allow customers to come in and have something notarized there. Often UPS stores, FedEx stores, and other postal stores have notaries on staff. The parties do not have to sign in front of the notary at the same place or the same time. Signing in front of separate notaries is also acceptable.
At this point, if you have completed the foregoing steps – created a written document expressing the intention and agreement of the parties, signed by both parties in front of an official notary, you have an official legal document – a separation agreement. It is not necessary to file the agreement with the court, but it is important to keep it safe. It is recommended that you put it in a safe deposit box or other very secure location so that you can always access it when you need it, but can also know that it is protected.
It should be noted that the only exception to not having to file the separation agreement is in the instance that one of the spouses is conducting a real estate transaction after they sign the separation agreement, but prior to the time the divorce is official. In this case, you do not have to file an actual copy of your agreement, but can instead file in the public recommend something called a “memorandum of agreement”. This is essentially a very brief document indicating that a separation agreement exists, but it will not include all of the specific details that you might not want members of the public to read.
If you have completed the foregoing steps, you can rest assured that you have made great progress forward in temporarily resolving the important issues between yourself and your spouse, and moving further down the path toward a peaceful and productive final divorce settlement.