Does anything in SA prevent filing for divorce?

#1

STBX and I have a fully executed SA, the template I obtained from your website. It is essentially identical aside from our particulars. STBX wants to file for divorce, but claims her lawyer said she cannot file until my IRA is transferred over to her (the IRA is listed in the SA as part of intangible personal property to be transferred to her). The verbiage in the SA does not specify a time for the IRA transfer to occur (perhaps an oversight on my part, but not intentional). Per correspondence from the holder of the IRA, they will accept SA for transfer of the IRA and do not require a QDRO.

She then asserts that if I don’t transfer the IRA then I am in breach of the “Specific Performance” clause of the SA. I do agree this is the case of I don’t transfer it, but since the SA does not have a specified timeframe for transfer of the IRA, what am I in breach of? While I have every intent of transferring the IRA over to her, I am being cautious. She has been fixated on this IRA the whole time, it makes me suspicious of her intentions.

To simply get things accomplished quickly and to move on with life, all elements of equitable distribution have been completed aside from the IRA transfer. I am holding on to the IRA as long as possible as it is my only leverage if she goes off the rails for some reason (our relationship is now quite toxic, primarily on her part).

To all of this I cry foul and feel like they are trying to dupe me. It is my understanding that the SA has no influence on the ability to file for divorce. Especially in the case of equitable distribution which can take years sometimes if complicated. If so, either her lawyer is either wrong or lying…or STBX is. Our SA specifically states that it will NOT be incorporated into the divorce (again, per your original template). The SA has not been filed anywhere, but is fully executed by notary.

I have read the pages on the NC Judical Branch regarding divorce requirements and see no mention of requirements to have completed all steps of equitable distribution in order to file for divorce.

My question to you is this, are her assertions correct? I believe NO, but look for your advice. Thank you.

#2

The IRA transfer has nothing to do with the ability to file for absolute divorce unless it specifically states so in the separation agreement. Otherwise, as long as you have been separated for at least one year and separated with the intent to remain permanently separate and apart, then either spouse can file for absolute divorce.

If there is no time limit or deadline to do something that is called for in a separation agreement (to transfer the IRA in this case), then it must be done in a reasonable amount of time after the date of execution of the separation agreement.

If equitable distribution is fully resolved (and it would be fully resolved if the terms are in a fully executed and notarized separation agreement), then you should be able to file for absolute divorce at any time after being separated for one year.

Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

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