Separation Agreement


#1

Dear Elaine:

Greetings. You are correct in everything except #3 - as an agreement does not have to be incorporated into your divorce decree. I generally do not have my agreements incorporated into divorce decrees, but that is up to each attorney. Thank you.

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

ROSEN.COM

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.


#2

My spouse and I have been separated for over 5 years. We finally wrote, signed, and notarized (one witness a piece) a marital separation agreement ourselves, including child support. My question is : Can this be filed with the court systems? I would feel more comfortable if it was filed.

Also- I want to file absolute divorce papers, but can I still do that if we have a separation agreement?

Thank you.


#3

Not really sure that it’s necessary to file with the courts system since it will not need to be brought to court. Maybe an attorney will answer this.
You can file for absolute divorce at any time after one year and one day of living separate and apart from your spouse. A separation agreement is just an agreement “announcing” that you are separated and working out the property, child support and custody. It’s nice to have but not necessary to be awarded absolute divorce. Also the added benefit of having a signed separation agreement, there is nothing left to settle, once you file for absolute divorce.


#4

Question: Can she get out of our separation agreement?

Story:

My wife of 8 years and I separated after I started finding condoms in her posession.

We drafted a separaton agreement and I hired an atty to “do it right”. It was signed and notarized and filed.

Nine months went by before I could file a complaint for Absolute Divorce. In her Answer to my complaint my ex did not challenge the divorce but added a counter-complaint that the court should set aside the Sep Agr.

Her claim is that she did not know the value of one of my retirement accounts (statements were mailed to the house for 8 years) and therefore all of the marital assets should be redistributed by the Court. She also claims that I misrepresented the agreement to her and she didn’t know what she was signing.

It is worth noting that the agreement reflects everything we discussed prior to signing it. I have documentation of that fact. Also, she was left to study the agreement for several days in its final form before sigining it. It was signed in front of a notary at HER bank that she drove us to in HER vehicle at a time of HER choosing.

She has no evidence to support any of her claims but nevertheless I now have to hire an atty to defend myself. Since signing the agreement I have followed my obligations to the letter.

Can she get the agreement set aside? Do you need more info?

What should my next step(s) be?

Thank you,
EZ


#5

OH WOW! This sounds sooooo familiar. My husband’s ex did the exact same thing with the exception of she also used the excuse that she was on medication for depression as the reason she didn’t know what she was signing. She had the papers for 3 days and even caught a mistake in them about property own that was not listed. The papers were drawn up again to include the property and she had them another 3 days and then signed. She claimed that he read the papers to her and that he read them how he wanted her to hear them. His lawyer just laughed at this, since she had the final draft for 3 days in her possession.
Your next step is to get an attorney, a good one. It’s worth it. Draw up a timeline of events and document everything that you know to be true. Get a recorder on your phone and afterwards, ask her about these things. Make sure that you are recording that. Tell her that you both know this isn’t true and see what she admits.
My husband didn’t record the one conversation where his ex told him that after thinking about it further and after he brought me into the picture, she really didn’t think she got what she thought she deserved so she was going to try anything she could to get more out of him until he had nothing left. She left him, for another man (who left her), and was angry that he had moved on with me. They argued for months with her trying to get him to agree to give her $5000, $800 child support (two children), her having full custody and him paying 1/2 of everything else, buying the kids everything needed. What she finally agreed to to keep this counter claim of hers from going to court was joint legal and physical custody with equal time, $500 per month cs, he pays for clothing twice a year (which we have since changed), and he carries insurance. She got no money from him, and the only things he agreed to give her extra from what she took when she left were a couple of items from the home that he had no interest in. She did NOT want this going to court.
Keep in mind, if the negotiations are reopened, you can renegotiate on your part also. I would get an attorney and make the necessary documentations. A good attorney will show that she knew there WAS a retirement account even if she didn’t know the amount and that she didn’t bother to ask for this information before signing the original agreement. I don’t think you have much to worry about, but get an attorney, get a recorder, and document everything.


#6

I do not think she can get the agreement set aside since she signed it. It is binding. Now…whether she can modify when the divorce is set up (since agreements don’t have to be incorporated into divorce) is a question for your attorney.

My friend signed an agreement to get out of the marriage and now he’s bound to it indefinitely because he is now divorced. Yes, hire a good lawyer. Show that you’ve followed the agreement to the tee. Make sure you have your back-up.


#7

The atty that was paid to write up the Separation & Property Settlement also filed a “Memorandum of Separation and Property Settlement” with Mecklenburg County at the same time. The Separation Agreement states that “…all terms and provisions of this Agreement shall survive absolute divorce and be forever binding and conclusive…” etc. etc.

The atty has agreed she will “watch my back” as this unfolds.

It’s appalling, really. You enter into an agreement. You live by it (to the letter) for the better part of a year and then Ex decides she should have more money.

Meanwhile you have mapped out your life according to the Agreement, i.e. cost of living, lifestyle, assets, debts, etc.

Meanwhile, GE Capital sends you a letter stating your ex-wife has stolen your identity by using your SSN to acquire a credit card in your name. There are at last count around $3,000 in charges on said card. For those who are wondering, she was able to pass the normal security checks and balances because she is an employee of the card issuer.

Seriously, would any judge take a claim like hers seriously?

Thanks again,
EZ


#8

You can have a ‘fraud alert’ placed on your SSN through the credit agencies. That way if ANY type of account is opened (even one YOU do), you’ll be notified and asked for approval. Now I don’t know if she can slip under that due to her job, but if you have a date in which the account was opened, and it was AFTER your date of separation, I don’t see how you’d be liable for the debt. Make sure your lawyer knows about that little trick she did and let HER know that you and your lawyer know. What she did was illegal.


#9

I would make sure that that letter is with me in court. This looks to me as though you may have a criminal case that you could have charged her with. If the letter actually states that your STBX went through the process of getting a credit card solely in your name with her name not even on the account, using your SSN, and this was after you were separated, then you have cause to contact the police about your SSN being used without your knowledge or approval by her. Do you even have the card? If she has signed your name for charges…isn’t forgery illegal? Also, you should contact her employer to let them know what has happened so that this will not happen to someone else. This has me a little concerned that an employee, knowing anyone’s SSN could get a credit card in that person’s name and use it…


#10

EZ - My husband’s separation agreement laid out custody, as well as property distribution, and the agreement was incorporated into the final divorce decree. Then, when he got military orders to Gtmo Bay, he gave temporary custody to his ex-wife since it would violate the Mom’s visitation to bring his daughter (he was primary custodian) out of the country with him. Now that he’s back, she’s actually suing him for custody, based on the unincorporated, amended, temporary custody agreement! And a judge in Onslow county actually fell for it! So, incorporated-vs-unincorporated means nothing if you get a judge that’s bored enough to go for it . . . The agreements are only as binding as a judge decides he wants it to be.


#11

I never signed anything regarding this card.

It was acquired while we were married and used during, up to and even after our Sep Agr was signed. I don’t know what name she signed on the receipts. The “Fraud Investigation Unit” for this company did encourage me to contact the police but at the time I didn’t have the heart.

I suspect the boyfriend/co-worker (see posting about condoms) knows what the card was used for. The company suspected she was returning the items for cash.

No, I do not have the card–couldn’t even tell you what one looks like. She used my SSN because her credit is toast (over $30k in credit card debt).

EZ


#12

Thanks.

The company that issued the card stated that they put a fraud alert on my SSN in the letter they sent me.

EZ

quote:
[i]Originally posted by momof4kids[/i] [br]You can have a 'fraud alert' placed on your SSN through the credit agencies. That way if ANY type of account is opened (even one YOU do), you'll be notified and asked for approval. Now I don't know if she can slip under that due to her job, but if you have a date in which the account was opened, and it was AFTER your date of separation, I don't see how you'd be liable for the debt. Make sure your lawyer knows about that little trick she did and let HER know that you and your lawyer know. What she did was illegal.

#13

EZ - we went through this with my husband’s ex, as well. We pulled his credit report last year and there was a loan on there that he didn’t apply for. You can request the original paperwork relating to the credit card - she/you would have signed off on something authorizing the account, and you can begin by comparing signatures… And, since it’s “your” account, you can request paper copies of the statements, going back as far as they have a history of. Get all of that paperwork together - you’ll be able to see what she was purchasing just based on the statements, which you have full legal rights to, since according to the CC company it’s your card! It’s always good to go to the authorities with the case made for them, laid out on plain paper. They tend to work harder for you when they see that you’ve done some of the legwork for them. We got the loan in question taken off our credit.

Although, I’d be surprised if she was returning items for cash - there’s very few stores that allow that to happen these days. (I know, my very first “real” job was as Store Manager for an outlet in Concord Mills.)


#14
quote:
[i]Originally posted by EZRiderNC[/i] [br]I never signed anything regarding this card.

It was acquired while we were married and used during, up to and even after our Sep Agr was signed. I don’t know what name she signed on the receipts. The “Fraud Investigation Unit” for this company did encourage me to contact the police but at the time I didn’t have the heart.

I suspect the boyfriend/co-worker (see posting about condoms) knows what the card was used for. The company suspected she was returning the items for cash.

No, I do not have the card–couldn’t even tell you what one looks like. She used my SSN because her credit is toast (over $30k in credit card debt).

EZ


I do hope that the company let her go, since they know being an employee she was able to bypass normal security measures and commit identity theft…
A lot of stores now, when making a return will process the return in the manner that was originally used for payment.
I’m with ivyalmighty, get the paperwork together and file a report. Take this information with you to court to defend yourself in her quest to get more finacial gain from having the agreement overturned. This will show her “true colors” more clearly to the court.


#15

A last word: You didn’t have the heart?
Well-obviously SHE didn’t either. I learned the hard way never to trust when it comes to money (at least with MY ex). I ‘forgave’ so much that it hurt me in the long run. Never again! I would not hesitate to pull the gloves off to protect my credit. I hope the card is cancelled and you do all that the others have suggested. Good advice.


#16

I also need some advice about separation agreements.

Wife and I are struggling to determine an equitable distribution of items to finalize a separation agreement. I need help to understand how to value items, what should be on the list and offer suggestions on how to handle the situation. We are living together and she won’t move out without a separation agreement. She wants the separation.

I need suggestions to the following:

  1. Wife rented a house back in December without a final agreement and she isn’t willing to list her rent and expenses on her list of assets/expenses. It’s about $1500/month. Therefore I’m being forced to pay half of her expenses but she pays zero of our current mortgage and expenses which is 3 times that amount. Also isn’t this concidered moving out even though she sleeps at our current house? Are there legal actions I can take because she rents a separate place?

  2. She also made 4 personal trips to Ohio to visit her family (with my son) since she announced she wanted to separate. Should this be listed as expenses on her side of the asset/expense sheet? Do I have to pay half?

  3. What’s the best way to value personal items like furniture, camera’s etc? Is EBay the only option or can someone come do a personal property appraisal? Any recommendations on someone to do this? She has also removed items from the house that have value without telling me. I have photos from our insurance files to show they were here. Can she do this?

  4. Any suggestions on how to handle individual legal fees? Should we split the expenses? Do you list these expenses on an asset or debt worksheet?

  5. She had a $10,000 breast enhancement and plastic surgery which was all elective. Isn’t silicone considered an asset that leaves with her? Should this go on the ED worksheet?

Thanks


#17
  1. Not sure how rent pays into it as far as assets/debts. If this is where she is going to live, then I would think it’s hers to pay. Has she been paying rent thusfar or have you been helping. Once she leaves, that apartment would be hers to pay. I assume you didn’t sign the lease. She is still responsible for 1/2 marital debt.
  2. If she paid for her trip with joint credit card, then it’s a marital debt.
  3. Ebay would be my best bet on valuing your furniture and such.
  4. Breast implants? Medical bill.

As long as you are still married and living together, it is my understanding that all debts accrued are marital debt. You are responsible for 1/2 debt and you get 1/2 assets. I don’t think fake boobs count as an asset (at least in my book). I would start taking things out of your name that you don’t need. Cancel joint accounts and open separate ones.


#18

You are not separated if she is still staying in the marital residence. needinganswers has the rest about right. Until she quits living in the marital home that renatl house is also considered marital debt.
Surgery of any kind would be medical bill and would be marital debt.
Do not split legal fees. You pay for your lawyer, she pays for hers.
Request a listing of items that were removed and have a listing of items still in the home. The good thing about an agreement is that it doesn’t have to be exactly 50/50. Ex, you get the dining room table but she took the washing machine/dryer. Or let her take the vacuum cleaner because she already took the area rugs and you are keeping all the pots and pans, dishes and the grill.
My husband let his ex take everything out of the home except one TV, one of the children’s beds, his recliner, washer/dryer and computers. He bought her new washer/dryer since she left the old ones. Everything she took, he had to replace. In their separation agreement everything she took was listed, including the decorative pictures for the walls.


#19

Dear tulips3:

Greetings. You can incorporate it if the language of the separation agreement says that you can. Thank you.

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

ROSEN.COM

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.


#20

My husband and I have been physically separated since December 2006. We have worked out the details of our settlement agreement (this is a very simple, uncontested divorce) and have written it up. We are now ready to make it a legal document. My understanding is that we need to

  1. Sign the agreement in front of a notary
  2. Notary must sign and seal
  3. Make 3 copies - 1 for Husband, 1 for Wife, and 1 that will be attached to documentation when we file for the actual divorce (1 year an 1 day later from separation date.

Please confirm if we are missing any steps.

Thank you