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In North Carolina, couples must live apart for a period of one year before they can obtain a divorce. It is helpful to seek legal guidance from a separation lawyer in Wilmington, North Carolina. A couple’s separation begins as soon as they start living apart. During this separation period, couples are not allowed to reside in the same house.

While your separation is considered legal when you live apart, it may be in your best interest to get a legal separation agreement. A separation attorney can answer your questions and guide you through the process of getting a legal separation.

What is a Legal Separation Agreement?

A legal separation agreement is a legal contract for couples to utilize during the interim period of separation before a divorce. In North Carolina, there are several options for obtaining a legal separation. Couples may enter into a separation contract, a Separation Agreement and Property Settlement (SAPS), or obtain a Court Order. A legal separation lawyer in Wilmington, NC, will review your situation and help determine the best route to take in your case. Keep in mind that all cases are different and your circumstances must be taken into consideration when you decide how to handle your separation.

Separation Agreement and Property Settlement

A separation agreement and property settlement is a way to distribute your assets and liabilities in preparation for a divorce. The separation agreement should be as detailed as possible so that you are protected during the process. Your legal separation attorney will ensure that the document contains everything necessary to ensure a smooth proceeding once you are ready to divorce.

Court Order

A court order is made by a judge and creates a legal requirement for both parties. The failure to abide by a court order could result in criminal penalties. One or the other spouse may request a legal separation based on marital misconduct. Types of misconduct may include such things as adultery, drug or alcohol addiction or conviction of a crime, among others.

This type of legal separation is called a “divorce from bed and board,” however, it is not a divorce at all. It is basically a legal separation. It is helpful to speak to a Wilmington separation lawyer to find out more about these types of cases.

A legal separation typically remains in effect until you finalize your divorce. At that time, the divorce order takes over, and you must follow the new order of the court in regards to all of the issues of your divorce. If you or your spouse violates the order, it could be cause for legal action. Talk to your Wilmington, NC separation lawyer to find out how to proceed.

Common Reasons for Legal Separation in North Carolina

A legal separation agreement is not a requirement for a divorce; however, it can make things easier and less troublesome. The agreement is a way to efficiently take care of some of the divorce issues that must be resolved. The sooner you can iron out some of these details, the better. As time goes by, it can become increasingly difficult to resolve some of these troublesome issues. The most common difficulties arise with issues that revolve around finances and children.

Couples who obtain a legal separation must still fulfill the one-year separation requirement before they can end the marriage. By resolving some of the settlement details ahead of time, you’ll be prepared to follow through with a divorce as soon as you meet the one-year waiting period. A Wilmington, NC separation lawyer is available to assist you in handling a separation agreement.

Sometimes couples can amicably agree to the settlement terms of their divorce while other times it can be a frustrating and complicated experience. Your separation lawyer will help work behind the scenes to resolve difficult issues ahead of time. A legal separation can give you and your spouse the opportunity to come to an agreement so that the actual divorce will be much easier and less stressful.

What to Include in a Separation Agreement

Everyone’s marriage and separation are different, and couples all have various issues and concerns. Therefore, no two separation agreements are always alike. They may differ based on the unique circumstances of your marriage. Your separation lawyer will evaluate your specific needs to ensure that everything is properly addressed in the agreement. Some of the most common issues that are addressed in a separation agreement are:

Property Distribution

Your property includes everything that you own and have acquired during your marriage. Your home, furniture, clothing, vehicles, sporting equipment and all else is included under this category. The property also includes your investments as well as your pension or 401K.

Neither party is allowed to remove marital property until it is accounted for and a distribution determination is made. This is most important when it comes to money in checking and savings accounts. Discuss the financial concerns with your Wilmington NC Separation Agreement Lawyer to ensure that your rights are protected during the separation period. It is important that you don’t remove money from your accounts and your spouse cannot remove money either. Your legal separation lawyer in Wilmington will help you make sure that you can pay your bills and that your needs are met during this time.

Distribution of Debts and Future Liabilities

In addition to your property, you also have accumulated debts during your marriage. These liabilities must also be distributed equitably between you and your spouse. This is generally true even if the item purchased was to be used primarily by one spouse. These particular instances need to be reviewed with your separation lawyer on a case-by-case basis.

Immediately upon your separation, you should make a list of the entirety of your assets and debts. This will help you and your legal separation attorney as you work through the many issues of the agreement. It will also ensure that every one of your liabilities is noted and a determination can be made as to which of you will be responsible for payment.

If you fail to provide instructions for a particular bill or debt, it will remain owed by both of you after the divorce. To avoid this situation, make sure that you provide a complete list of everything to your separation lawyer when you begin reviewing your case.

Marital Residence

Your home is probably your most important asset. If you and your spouse purchased your home together, you need to determine what will happen to it as part of the separation and divorce. There are several options when it comes to your home. Your Wilmington NC Separation Agreement Lawyer will apprise you of the various choices.

You and your spouse may sell the home and split any profits that you obtain from the sale. One of you may purchase the home from the other spouse. Finally, you may choose to keep the home, owning it together until a future time. There may be advantages and disadvantages to each option. The best solution is the one that allows you to retain as much money as possible. Your separation lawyer will review your choices with you to help you understand each one.

In some cases, spouses decide to keep the home together, allowing one spouse to live there with the children. This is most often done when the children are established in the home and neighborhood because it causes the least disruption in their lives. Later, once the children are grown, you and your spouse will sell the home and share the profits. This choice may be best for people with young kids. Talk to your separation attorney to find out whether this is a viable option in your situation.

One of the most important concerns about the marital home is the amount of equity that you have in it at the time of your separation. If your home is paid off or you have owned it for a long time, the chances are high that you have a large amount of equity. However, if you recently purchased the home or refinanced it, you could have little equity in it, or you could be upside down on your mortgage. In this instance, your separation attorney in Wilmington, NC will let you know your options. It might be better to wait until the home has accumulated equity before you decide to put it on the market.

The actual home market at the time of your separation will also be a determining factor in what option you choose. If the market is strong, you will likely get a good price for your home, and it might sell rather quickly. If the market is weak, you could lose money on the home sale, or it could sit on the market for an extended period of time. Your legal separation lawyer in Wilmington, NC will assist you in understanding your available choices.

Child Custody and Support

The most emotional issues in a separation are often tied to the decisions involving our children. You and your spouse must decide where the children will live and how you will handle visitation and support. Generally, both parents are allowed to have equal access to their children. In practice, it makes sense for the children to live with one parent full time and have visitation with the other parent.

The non-custodial parent usually needs to pay child support. A separation lawyer will help you work out this arrangement with your spouse so that your child gets the money he or she deserves during the separation period. Do not wait to resolve this issue because it could have an impact on the final determination of your divorce.

Remember that visitation should occur with the non-custodial parent. This is true even if the details of support payments have not yet been resolved. A legal separation lawyer will guide you through the process and help make sure that support payments are in place. In the meantime, neither you nor your spouse can withhold visitation.

Spousal Support

Spousal support is also called alimony. It is money paid from one spouse to the other during or after a divorce. The most common need for support occurs during the separation period. A separation lawyer will explain the various options and help determine whether support is a requirement in your particular instance.

Temporary support is sometimes granted for cases where one spouse needs to take some classes to prepare for employment or find a job if he or she is currently unemployed. Both you and your spouse should be able to continue to live in the manner in which you were accustomed prior to your separation. Your separation attorney will ensure that you have access to the finances you need to live.

Changes to a Legal Separation Document

In addition to these important items, the separation agreement should outline the steps either party must take in order to make changes to the document or when they want to rescind it altogether. Additionally, the document should also include details of what will occur should you and your spouse decide to reconcile. A Wilmington separation lawyer will ensure that the document is properly worded so there are no problems or questions later.

Reconciliation and Legal Separation in North Carolina

In some cases, a couple may reconcile during the year of separation. Generally, the court does not deem that reconciliation has taken place unless both parties resume living together as a couple. For instance, simply having intercourse with your spouse during this time won’t be considered reconciliation. However, there could be some exceptions. If you are unsure about your reconciliation, you should discuss the matter with a Wilmington, North Carolina separation attorney.

However, if you and your spouse begin living under the same roof, the separation period is ended. If you want to divorce again in the future, you must start the separation anew in order for the one-year period to be completed. The one-year separation requirement must be uninterrupted, or the clock is reset. A legal separation lawyer in Wilmington, NC will explain how the separation period works.

Seek Assistance from a Wilmington, NC Separation Lawyer

A separation agreement is a legally binding contract as long as it is executed properly. For this reason, it is important that you get help from an Wilmington NC Separation Agreement Lawyer to draw up and execute the agreement. The separation attorneys at Speaks Law Firm, PC Family Law Division are here to help you through this important time. We understand the need for a separation agreement and will assist you in putting an agreement in place. Contact Speaks Law Firm, PC Family Law Division today to schedule a consultation with a separation lawyer to discuss your needs.

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Why Choose Speaks Law Firm, PC Family Law Division?

Passion – Our family law attorneys, Justin Moulin and Sarah Gray, are dedicated to helping clients with legal matters involving divorce and family issues in Wilmington, North Carolina. We put clients’ needs first, and we are passionate about helping people through emotionally difficult times.
Experience – When dealing with family legal issues, you need someone with a proven track record. Sarah Gray and Justin Moulin have dedicated their careers to representing families. Sarah has more than 10 years of experience representing clients, while Justin has worked in multiple counties in North Carolina and has focused on custody and child support actions, protective order hearings, alimony claims, property division, and divorce.
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FAQS About Separation Agreements

Below are some frequently asked questions about Separation Agreements:

Why do I need a separation agreement?

In North Carolina, separated couples must live apart for a year before they can file for divorce. This legal separation period allows the spouses to work out all crucial divorce-related issues such as property division, child custody, child support, and alimony.

Your divorce will be quicker, smoother, less conflict-prone, and probably less costly if you approach the filing time with a complete, mutually acceptable separation agreement. Our separation attorney at Speaks Law Firm, PC Family Law Division can provide legal guidance and help you draft a suitable agreement.

What should a legal separation agreement include?

A separation agreement should cover all the core issues you will need to resolve, such as:

  • Distribution of all marital assets, including joint bank and investment accounts, 401Ks, vehicles, and insurance policies
  • A plan for your family home (do you sell it and split the proceeds? Does one spouse buy out the other’s share?)
  • Distribution of current and future liabilities and debts
  • Custody, visitation, and child support arrangements
  • Alimony payments, if any
  • Plans for a jointly owned or managed business (e.g., a buy-out or liquidating the business)

Once you sign and notarize a NC separation agreement, it becomes legally binding.

What happens if my spouse and I can’t work out a separation agreement?

A voluntary separation agreement that covers all the essentials is the best way to minimize conflict during divorce. An experienced separation agreements attorney at our firm can help you and your spouse reduce friction and achieve reasonable compromises on high-conflict issues like custody or asset division.

Sometimes, when the divorcing spouses cannot reach a mutually acceptable agreement alone, mediation is helpful. If negotiations with your spouse through mediation fail, you will need to take your divorce case to court. However, a NC family law court will still mandate mediation before resolving your dispute through a court order. Call our firm for legal support.

Do I need a separation agreement attorney?

The legal separation period may be an emotionally tense time with lots of conflict potential. A skilled separation agreements attorney from our firm can facilitate communication between you and your spouse, guide you through negotiating a separation agreement that suits both parties, protect your legal rights, and help you avoid a stressful and expensive contested divorce.

Call our office at Speaks Law Firm, PC Family Law Division in Wilmington, NC, at (910) 769-7339 for a consultation.

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