Separation agreement / child custody questions


Dear Clancygus:

GReetings. I am sorry, but I don’t have the time to read the entirety of your post right now. If you will respond with single questions, I will answer them one at a time and much quicker. First though…STOP USING YOUR INHERITANCE TOGETHER. You are gifting this money, which is your separate funds, to your marriage. That means you cannot get this back or get any type of credit for your funds. 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.


My husband and I have separated as of last week. We have two young children. Currently, we are both full-time graduate students and not employed (except my part-time employment during the school year.) We will both graduate in December and obtain full-time employment. For now, we plan on sharing our available funds (financial aid and inheritance from my grandmother) until one or both of us is employed.

I’ve been reading on this forum and on the site to better inform myself of my options for separation and divorce, but I am still unsure of the logistics of the whole thing. We are pretty amicable about division of property and child custody, so we won’t need litigation to work things out, but I thought I’d better find throw a few questions out there before I draft a copy of the separation agreement. Yes, I will make sure an attorney reviews it to make sure our best interests and the best interests of our children are represented. We have lots of friends and family members that are attorneys, but no one is aware that we have separated yet, so I have hesitated asking them for help.

Questions: Would it be better to go ahead and get a separation agreement now or wait until we are employed and have an idea about our future salaries? If we got a separation agreement now, could the agreement say something vague about child support and how it will be determined by whatever it is that determines child support once we are both employed? Or should we just wait another 6 months and then draft one? And things such as who will contribute to daycare expenses…do we have to spell that out as well even though we don’t know what the daycare situation will be in 6 months? Or is this just another reason to wait to get a separation agreement?

As far as custody goes, my husband seems pretty willing to go with whatever I think is beneficial for the kids. The kids will live with me the majority of the time until perhaps they are older. Would it be beneficial for me to ask for sole custody over joint custody? Either way, we will work out a co-parenting schedule in the separation agreement that is flexible and allows us both to have time with the kids as mutually agreed upon by us. I just don’t know how sole vs. joint will affect us in the long run, say if he wants to remarry and move away or I want to move away. These are things that are not issues as of yet but are potential issues, obviously. Does it matter which type of custody you file for in regards to situations like these?

As far as property division, our main co-owned property is our house. We plan on keeping it as a rental property for several years until we mutually agree to sell. Can it be worded something like that in the separation agreement, or does it need to be more specific?

As far as rights to pensions…well, we really have no retirement except for individual state retirement accounts from teaching in Alaska, and I have a North Carolina teacher’s retirement account from when I taught here five years ago. I don’t plan on trying to get any of my husband’s retirement and he doesn’t want anything from mine…do we even need to mention this in the separation agreement, or do we need to say that our retirement accounts are ours and each of us has no claim to the other persons?

I think those are my main questions right now…but I’m sure I’ll have more as my brain processes the quantity of available information. Also, thanks for providing this service!