As anyone who has been divorced before knows well, divorce is far more than a piece of paper dissolving a marriage. It is a process. And like any process, it has a number of steps – the first of which is separation. In North Carolina, before parties can officially file for divorce, they are required to live separately for a year and a day. The day on which you or your spouse moves out of the marital home to establish a separate residence is the day your separation begins, and the separation must continue for a full year with the intent not to resume the marriage before you are eligible to obtain an absolute divorce.

Although no official legal documentation is required in order to make the decision to separate, couples often do choose to create a separation agreement. Understandably, when you are facing a complex divorce process, the last thing you might want to think about is more paperwork, but in fact, a separation agreement can actually be quite helpful in reducing the complexity of the divorce process, and helping couples to get on the same page with respect to the issues in the early stages.

Creating a separation agreement is a good way to ensure your interests are covered regarding property division, alimony, child custody and support, among other issues.  A separation agreement is an excellent way to protect yourself from misunderstandings and costly legal fees down the road, and to encourage focus and thought about the issues that matter. 

Understandably, however, some couples have anxiety about beginning the process of a creating a separation agreement. Particularly after the decision has just been made to separate and pursue a divorce, emotions may be running high, and cooperating with your spouse toward working out your issues may not seem like the easiest thing to do. The good news though, it is definitely something that you can do, if you are both committed to working toward a final result that is satisfactory to you both.

If you are going to attempt to negotiate a settlement agreement on your own, here are some helpful tips for doing so:

  • Find a neutral place. Make sure you feel safe and meet at a pre-planned time. If the conversation starts to get heated, stop the negotiations immediately.
  • Make a list of all of the issues you agree upon.
  • When discussing things you don’t agree on, really try to hear your spouse out. Then try to get your spouse to really listen to what you have to say as well. Try to keep your voice calm and steady.  Be careful not to box yourself in by setting a dollar amount too high or too low in the beginning.
  • Be aware and fully informed about the assets and debts you have as a couple.  Try to negotiate in a way that seems fair and equitable to both of you.
  • Try to address all issues at one time. This promotes closure and can keep expenses down.
  • When there is a disagreement over something, look at the facts. Talk with your spouse about what the likely outcome would be if you have to go to court.
  • Always keep in mind that, once signed, separation agreements are legally binding contracts. You should always have an attorney review any agreement before you sign.

The best way to handle negotiations is to remain calm and keep your emotions in check.  Focus on what you really want and need and what your spouse really wants and needs, as well as your financial situation currently and in the future.  Don’t try to negotiate without doing your homework first.

Some couples are able to negotiate an agreement on their own, but some need the help of an attorney.  Hiring an attorney who knows and understands the law, and all of the nuances that might apply in your particular case can be extremely helpful, even if you and your spouse are able to communicate amicably and effectively. An attorney will be able to tell you how the law applies to your circumstances, and help you to make sure that you are not overlooking any rights you may have when you draft the agreement.

Finally, it is important to remember that even if you are ultimately unable to come to an agreement with your spouse, it’s okay.  Just keep putting one foot in front of the other.  You may not be able to come to an agreement on the important issues between you in the near future, after the dust has settled. And even if you end up having to litigate your issues, with the right attorney on your side, it is possible to make it through these difficult times and onto the next new chapter with hope and optimism for what lies ahead. At The Law Office of Dustin McCrary, we’re here to help you do exactly that.  Call us soon.

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