What in a divorce settlement can be negotiated


#1

A separation agreement is designed to keep from going to court over custody, equitable distribution, and child support. You can file for divorce if you have been separated for one year and one day. A separation agreement or lack of does not affect your eligibility to gain absolute divorce. If she signed the agreement then she is legally bound to it, unless she wants to take you to court and fight it out and even then, most cases a signed agreement holds up as long as it’s fair.

If the alimony has already ceased due to cohabitation as stated in the separation agreement then there is no reason to restart it after divorce. Below are the laws on alimony but since alimony was not court ordered in your case, she would have to take you to court, get alimony court ordered and then show that she has not already violated that order by cohabitating.
“An order of postseparation support will terminate, pursuant to the applicable statute, if (1) the parties resume marital relations; (2) the dependent spouse remarries; (3) the dependent spouse cohabits with another adult in a private heterosexual or homosexual relationship; (4) the dependent spouse dies; or (5) the supporting spouse dies.”

“Any motion to modify or terminate alimony or postseparation support based on a resumption of marital relations between parties who remain married to each other shall be determined pursuant to G.S. 52-10.2.
(b) If a dependent spouse who is receiving postseparation support or alimony from a supporting spouse under a judgment or order of a court of this State remarries or engages in cohabitation, the postseparation support or alimony shall terminate. Postseparation support or alimony shall terminate upon the death of either the supporting or the dependent spouse.”

I would say you are in the clear to file for divorce, include the signed separation agreement and move on with your life. It’s possible that she could answer your divorce complaint with some issue about the equitable distribution but that will not “hold up” the divorce.


#2

Dear RalDad:

Greetings. Yes, you can file for divorce but there is no need, and you probably should not, indicate anything about the separation agreement in the divorce complaint.

Yes, if not specifically stated in the agreement that alimony terminates on cohabitation/remarriage then it may not. 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.


#3

… with a signed, mutually agreed to, notarized separation agreement?

Specifically, my wife wants to renegotiate some terms in the sep agreement but I want to “get on” with my life and proceed with the divorce (we separated last January).

Can I just file for divorce and indicate that the sep agreement outlined all provisiions (support, custody, division of marital assets/debts/retirement plans, etc…)?

She is not contesting custody.

Thanks,
RD.

PS: Can alimony ever be made to last past the point of my STBX cohabitation/remarriage? (The sep agreement has already allowed spousal support to cease since she cohabitated in the 2nd month of her separation and the sep. agreement specifically calls that out as a reason to stop spousal support)