Separation Agreements and Divorce Process


#1

I have a few questions regarding separation agreements and the divorce process. My soon to be ex-wife and I have been separation for about 15 months and are a little slow getting the paper work going. We have separated very amicably, but still want certain terms in place just as a precaution (hence the separation agreement).

My questions are:

  1. Does the separation agreement have to be in place prior to the divorce? I.e., if the divorce is finalized before the separation agreement, are the terms invalid? We are not using the separation agreement as a start date to the 1 year separation requirement and the agreement is written in such a way to clearly state that, it is merely stating what we plan on doing with the house, etc.

  2. Does the separation agreement have to be signed by both parties at the same time? My soon to be ex-wife has moved to another state, but the way the sample separation agreement is written, it seems like both parties have to stand in front of the notary at the same time. If this is the case, can the notary be from the state that my soon to be ex-wife currently lives in? The divorce is being finalized in North Carolina in the county that we lived in.

I know this is convoluted, but any help/advice would be much appreciated.

Thanks!


#2

You do not have to have a separation agreement in place prior to obtaining an absolute divorce, BUT if you do not have an agreement or court order addressing Equitable Distribution (division of marital assets and liabilities) or Alimony prior to the divorce being granted, those claims are lost forever. This can be a costly mistake, so if you are unsure that this may be a problem in your case, please consult with an attorney in your county.

As far as the notary goes, you can certainly sign in different locations in front of different notaries. I would suggest one of you sign/notarize two originals, then you an mail it to the other party who can sign in front of a notary as well. Then you can each keep an original version of the document.


#3

Thank you for the quick response! My soon to be ex-wife and I have elected to have the Separation Agreement and divorce forms signed concurrently. In reading over the sample Separation Agreement posted on this website, I have a few additional questions:

  1. Under Section 8 Tangible Personal Property Located at Marital Residence, the third and fourth sentences of that paragraph read “Thus, all of the furniture, appliances, and other articles of tangible persona property presently located in and around the marital residence shall be and become the sole and separate property of John. Mary hereby relinquishes any and all claims he may have in and to the same.” Is this supposed to read “Mary hereby relinquishes any and all claims SHE may have in and to the same”?

  2. Section 27 refers to a Memorandum of Agreement in order to protect the privacy of both parties. How does this Memorandum differ from the Separation Agreement? Does the Memorandum incorporate the Separation Agreement by reference, just without the specific details? We have elected to not have the Separation Agreement incorporated into the divorce. Would the Memorandum of Agreement need to be incorporated with the divorce or would both the Memorandum and the Separation Agreement simply be instruments in the event of a future disagreement in the distribution of marital property?

Thank you for your help!


#4

You are correct, the ‘he’ instead of ‘she’ looks to be a typo.

Some people opt to record a memorandum of their Separation Agreement, the memorandum is simply a truncated version of the agreement. What you record at the register of deeds becomes a matter of public record, so you’d want to avoid recording the entire agreement if it had sensitive financial information. You really only need to record a memorandum of the agreement if you intend on purchasing real property before you obtain your absolute divorce. In that case you would include a free trader clause in the memorandum.