How to file separation agreement?

Many thanks to this web site for the information provided. I must also pass a big kudos to you guys. Even with the information you have provided from your web site, it took more than 12 hours to put together my separation agreement. I had no idea how much was involved but I do feel comfortable with the contents.

My wife has had an affair with an on line “friend” and now she just wants out. I am going to buy her out of her share of the house as part of the separation agreement and we intend on having this agreement in place prior to her moving out.

I have the separation agreement drawn up. Once we have hashed it all out and are in complete agreement with it and have had the signatures notarized, what’s next? What happens when you file the agreement and how do you do it? Do you simply both go to the clerk and say you want to file a separation agreement?

You don’t actually file for separation in NC. You are separated once one of you has moved out of the marital home with the intention of living somewhere else and without the intention of resuming the marital relationship. The separation agreement itself, once it’s notarized and signed, is a contract. A breach of its terms is enforceable under contract law. Alternatively, when you file for divorce you can ask for your separation agreement to be incorporated into the divorce decree. At that time, it would be punishable by contempt if its terms are not followed. You can go either way with your agreement. It’s up to you.

So that’s it? Sign, notarize, abide by it’s contents and a year and a day later you file for divorce if that is still your desire?

The reason I ask is that all of your separation agreements in one of your downloads show to have been recorded. Were they recorded at the time of divorce?

Lastly, we have agreed to child support and custody in the separation agreement. Does that need to be reviewed by anyone or as mentioned above or do you just follow it and if you can do that all is fine?

Thank you.

There is such a thing as a Memorandum of Separation. This is something you would file with the Register of Deeds. However, its only necessary if one of the parties plan on buying real property before divorce. If neither of you do, then it’s not necessary to do this.

Most Agreement are not incorporated, as they are valid and fully enforceable on their own. The agreement is enforceable as is, so long as it has been signed and notarized by both parties. The court does not need to have the SA at all. The Separation Agreement is binding as soon as it is signed and notarized by each party.

I see the last post was in 2011, is it still valid that you don’t have to file your separation agreement in the register office?

Yes, there is no such requirement that your agreement be recorded with the register of deeds.

Me and my wife drew up separation papers at home and had them signed and notarized. in the agreement I (the father) have primary residence of our two children, with joint physical custody. Child support was agreed to be split equally . Agreement was signed in June. Since then, a few weeks ago, I received a whole new separation agreement from her newly hired attorney, stating she wanted primary residence and child support. What should I do? She is threatening with court and custody battle. Just to give some back ground, she left me and the children a few years ago for a year. At that time she signed a custody agreement that gave me custodial custody. Basically she is using the children to get money. Not to mention she lives in another county and would have to switch the children’s schools. I guess the question is, what’s the chances of her reversing the separation agreement and getting primary residence? Thanks for the insight

Unless the first separation agreement is deemed invalid, the second one will only replace the previous one if both parties agree. I’d have to know more details and review the first agreement to make an analysis as to whether it is valid or not, but if you have signed and notarized the document it will only be struck down in limited circumstances. If it was signed under duress or a party lacked capacity at the time of signing are two examples of grounds to invalidate a separation agreement. You don’t have to sign the second agreement, and until a subsequent agreement or court order is in place, you can continue to abide by the custodial provisions in the first agreement.

Child related matters differ from alimony and equitable distribution in that either parent can file a custody or child support action even though there is an agreement in place. So, if you can’t reach an agreement about new custody provisions, she can file an action to modify custody and child support. I can’t speak to what her chances are, custody is very discretionary - a judge will make a determination after reviewing all of the facts and circumstances surrounding your case. The fact that she wants to relocate the children, which would require them to go to a new school, is certainly a factor the judge will consider.

Separation agreement is not that though to file. If you want divorce then you need a expert lawyer to handle your case. For separation you just have to signed and notarized the separation agreement.