Necessity of seperation agreement


Dear mdp32266:

Greetings. I became lost in your question, so let me give the best possible answer I can:

  1. If you are just deciding to separate, you can move out, but you may want to sign a non-abandonment agreement first if you are not ready to deal with the alimony and equitable distribution issues.

  2. No, filing for divorce is a completely different process from dividing up assets. You can divide assets at any time up to the date of the divorce. After the divorce, you lose the right to divide up assets through the court.

  3. Have you thought how you will split up the 401(k)? You need to understand how to do this in a tax free manner through a QDRO.

Rather or not you like it, it sounds like you need to go see an attorney and have a separation agreement drafted. Thank you.

Janet L. Fritts
Attorney with Rosen Divorce
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax


The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


I can’t honestly believe that I’m posting here, but life goes on, and I guess I need an answer to a very important question.

My wife and I decided last night to pursue a seperation after 5 years of marraige, but we’re trying to do this as calmly as possible in the hopes of maybe working things out.

I don’t get the impression that you absolutely need to file a seperation document. We aren’t ready to try and figure out property distribution yet, but I’m planning on moving out this weekend. Can’t you simply split up the assets when filing the divorce papers, and testify in court that you have indeed been seperated for a year, or is a seperation agreement necessary before the clock starts running on the one year seperation? We don’t have children, and our assets are pretty much limited to the house and 401K plan…which we will split up evenly.

There’s always an excuse, but rarely a reason