It’s clear to me the possibility exists that a separation agreement can be open-ended – that is, without an expiration date – and may executed not only upon the actual moving out point of one of the spouses but with terms written into the contract stipulating that terms may be readdressed at a future date.
Many lawyers interject their own personal opinion on this matter (i.e., endorse a rapid split after the agreement is reached) for whatever personal reasons…who knows.
I want to confirm (in NC) if a separation agreement may indeed be entered into without a set date (or perhaps a review date in the future) and only be executed in the event one spouse moves out. In that case, whatever terms were agreed to at the time of agreement would have to be observed.
Why is it clear that it is a possibility that it be open ended? Based on what NC GS (General Statue)? You can have a separation agreement with no one moving out. Moving out only starts the clock on when a divorce is possible (1 year). Separation agreements are valid from the time both parties sign (and notarize) them. They are valid FOREVER unless otherwise stipulated in the agreement. Executed? Unless some time is stipulated “execution” can happen at any time… Moving out or staying in the home has no bearing on on a SA despite the name.
Bottom line is a SA can say and do anything within the framework of the law. That is, it cannot stipulate anything that runs contrary to NC State law. Other than that, there are no limits to a SA time or otherwise unless stipulated in the SA.
You do not have to move out prior to executing a SA. In fact, most of the time parties don’t physically separate until they have a SA in place. So, if you sign it tomorrow and move out on Sunday, your SA is still in full effect. Whether you move out before or after executing a SA does not affect the validity of it as a contract. You should try to work out a separation agreement with the ex while you’re living there if possible, which will require him to move out shortly after it is signed. If the parties are still living together now the agreement they signed may not be valid, as parties must actually separate for a separation agreement to be enforceable. Also, the contract must have been signed before a notary public.
You must separate contemporaneously upon signing a separation agreement, ie, you cannot remain living as husband and wife until the home sells. So long as you consent to separate, one of you can, and should move out of the home. If either of you plans to purchase a new home, you will need to execute a Free Trade Agreement before doing so, otherwise your spouse would have an interest in that new home. You must separate before, or very soon after signing the Separation Agreement.
So long as you both agree to end your cohabitation there are no abandonment issues, but the person leaving the home is no longer allowed to re-enter the house without the permission of the other. So long as you are living in separate places, you are separated.
This is a good question and I can see why this matter is confusing. You can negotiate a separation agreement whenever and however you want. You can draft one up yourself, without even talking about it with your ex and just keep it in your pocket until you’re ready to give it to him. Assuming he will sign the agreement you made once you do give it to him, you will both need to execute it with a notaary. You would have to indicate in the agreement that you are going to separate contemporaneously with the execution of the Agreement. Generally, that must be within thirty days of the execution of the Agreement. So, you could be living together at the time of the actual execution, but one of you must move out very soon after the agreement is signed or the agreement will not be valid if challenged later in court.
No, 30 days is actually a longer than usual time. The typical period is usually within 10 days of executing a SA. If you do not physically separate contemporaneously with the execution, it is likely that your SA will not be considered valid if one of you later challenges it.