Is it necessary to file a signed Sep Agreement (or Memorandum of Marital Separation and Property Settlement Agreement) into the Public record? Why is that step typically done? If the documents are NOT filed, are they still valid? and/or enforceable? If they are NOT filed, are the parties still legally separated?
Thank you
NC_REsident
*** Not a lawyer ***
I don’t think there’s any need for filing the agreement for it to be valid or enforcable, it’s considered a contract and generally works the same as any other contract. Although do note that it must be signed and notarized to be valid, which is beyond the requirements for other contracts. On the other hand, having the Agreement or Memorandum filed may be required by other parties to let you make use of the Free Trader clause, or other such things.
As far as I know, North Carolina doesn’t have “legal separation” in the manner of some other states where there’s any sort of document or court order that the parties are separated, and a separation agreement is neither necessary nor sufficient to make the parties be considered separated. In North Carolina, the parties are considered separated (but not “legally separated” as the term is used by the IRS or in many other contexts) as soon as they begin living apart with the intention of at least one party that the separation is permanent.
Thanks for the great info, SadSad!
From my research today, it seems that if my husband and I enter into an agreement and both sign w.notary, the document would be binding & enforceable, even if not filed (I would still like an attorney to chime in on that though). If that is true, then the next question is, can it be a Property Settlement WITHOUT it being a Separation Agreement?
My motivation behind my questions are in relation to health insurance and the definition of “legally separated”. My husband is ok with staying separated and not divorcing so I can have insurance. But IF my husbands company requires that I come off his policy at time of ‘legal separation’, then that is a HUGE DEAL for us financially, and we would probably NOT file for legal separation because he would not be able to afford to pay me a family support amount AND pay my health insurance (I am self-employed and have had a serious disease in my past). There is no information online on their website to answer this question,and I don’t want to call them and ask because then they would have a record of that request. I don’t see how a company can require and/or enforce that I come off the policy because a separation (whether simply moving out of the house OR a legal separation) is not an AUTOMATIC guarantee of a divorce because the two parties could reconcile. But I have found recent articles that state that is exactly what companies are doing, for example if you go to forbes dot com there is an article called “Three of the Most Frequently Asked Questions about Health Insurance, Life Insurance, and SS After Divorce” by Jeff Landers, that states in part:
“Maintaining health insurance coverage is a major concern for many divorcing couples, and in fact, it’s one of the main reasons why some couples now opt for a legal separation instead of divorce. But, if you do decide to legally separate rather than divorce, please tread carefully. Some health insurance companies view a legal separation as essentially the equivalent of divorce, and so they will not continue coverage for a separated spouse. … Here’s the bottom-line: Do not take this matter lightly. Be sure to check with your health plan provider regarding their policies and restrictions. Health insurance companies have stringent requirements for when and how they must be notified of your divorce, and failure to do so could constitute insurance fraud. Your attorney can help your understand the laws as they apply to your specific case.”
So I am trying to figure out a way that we can still address our issues (debt, assets, family support, etc) and yet NOT be considered LEGALLY separated, IN CASE that would cause an issue w/his employer in regard to health insurance.
Any advice would be appreciated… thanks much!
NC_Resident
Any attorneys available for this post? Many thanks
Bumping up post…
It is not necessary to file a separation agreement. If the agreement is incorporated into a court order, it can be enforced as a court order rather than by a breach of contract action. If the separation agreement has a free trader agreement in it and it is recorded with the register of deeds, it will allow either party to buy and sell property without getting the signature of the other party.
In North Carolina, parties are legally separated when they begin living in separate residences with the intent to remain separate and apart for the purposes of divorce.
Sorry I missed your post earlier. I answer questions in the order in which they are posted, so every time your post was bumped up the list, it actually pushed back my response time.