Separation occurs when one spouse moves out of the marital home and into a separate residence with no intent to return. This can be done with or without a separation agreement. A separation agreement is used to specify what the parties agree to in regard to things like property division, alimony, child custody and support. A separation cannot end a marriage. For that, a divorce must be obtained after a one-year period of separation. The separation agreement is a binding contract, so it is important to make sure to discuss the agreement with your attorney before signing anything.
In many states, issues such as support, property and custody are generally submitted for approval to the court at the time of divorce (or as necessary). In North Carolina, all of these things can be settled between the parties before ever going before a judge. If these issues cannot be settled privately, they can be brought to court for a decision. Most married couples will wind up settling regarding custody, support and property division, even in the states where they must go to court. These settlements are known in North Carolina as a “Separation Agreement and Property Settlement.” This is basically a binding contract between the parties. If the case must be litigated and there is a settlement agreement already in place, the settlement may be incorporated with the court documents and be labeled a “Consent Order.” This is an agreement of the parties, signed by the parties and sometimes their counsel, as well as the judge. This order is different from other orders by the court because the consent order is based on terms the spouses agreed on, whereas most court orders are based on the judge’s rulings. Even if there is no case pending and no threat of litigation, it may be wise to obtain a consent order anyway, as a means of enforcement. A consent order, unlike a contract, is enforceable by way of contempt of court. Additionally, there is a higher standard for modifying custody and child-support orders than the standard used for obtaining an initial judicial declaration for custody or support. There must be a substantial change of circumstances that can be a difficult burden to meet.
Settlement is almost always a better route to take. Resolution by settlement is almost always more cost-efficient, shorter, and less emotionally draining than litigation. Divorce is an emotionally stressful event for all parties involved. Living arrangements can be difficult and financial uncertainty can cause strain. Having to deal with that as well as deal with court papers, discovery, and anxiety about formal court proceedings can push people past the point of stability. Litigation for any reason is extremely stressful but add the changes and strain of separating from one family into two, and it can be more than one person can handle. Additionally, settlement is a way to ensure you get most of what you really want. It may be hard to negotiate with your spouse, but the alternative is litigation and the judge making choices for you. The trial and adversarial tone is enough to discourage couples from going the litigation route. Add the potential losses that may occur and the emotional strain and drain on the entire family, including children, and it is clear why settlement is preferable.
When negotiating, you must “keep your eyes on the prize.” Keep your focus on the single issue that is most important to you and be prepared to compromise or make concessions for your spouse and what is most important to them. If you know that your most important issue is one and the same with your spouse, negotiation may not be possible. If your goals are not the same and you know what your spouse really wants, you will have leverage to get what you really want. You must protect yourself and inform yourself prior to going into negotiations. Try to separate the people from the problem, focus on interests not positions. Create options for mutual gain. Make sure you and your spouse are as objective as possible. Be aware if your spouse has the upper hand or is somehow playing dirty.
Negotiating can be extremely difficult, especially when dealing with divorce. Things can easily go south and get out of control, agreements can be made in haste and based on emotions rather than logic, and stubbornness may cloud decisions. The best way to be successful in negotiations is to keep calm and know what you need and want most, what your spouse needs and wants most, what the law says you are each entitled to, and what your family income and expenses are now and what they will be post-separation. Do not negotiate without knowing these things!
If you decide to negotiate without attorneys involved, set a time and make sure to pick neutral place where you feel safe. Try to stay calm and not raise your voice. Don’t offer up any amount that boxes you in to a set amount that is too high or too low. Make sure you know the value of the items of property you are going to receive. The lower the values on the items you will receive and the higher the value of your spouse’s items, the more you will get in a 50% division. Make sure to address all issues based on facts and try to avoid creating new conflict. If you disagree, talk about the likely outcome if you wind up in court.
If you cannot negotiate and agree on your own, enlist the help of an attorney or another professional. It may take some time, but settlement is still a better route to go and litigation should be your last resort.