Do I have to have a Separation Agreement to get a Divorce in North Carolina? - The Law Offices of J. Scott Smith
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Do I have to have a Separation Agreement to get a Divorce in North Carolina?

The short answer is no. You don’t need to have a separation agreement also commonly called a separation and property settlement agreement in North Carolina to get a divorce. The only requirement is that you and your former spouse have been separated and are living separate and apart for at least one year. Unlike some states, North Carolina is not a fault based divorce state. In other words, you don’t have to have a reason for the divorce, like a cheating spouse, to get a divorce. All that is required is the one year of separation. That being said, what benefits does a separation and property settlement agreement afford you? For starters, having a separation and property settlement agreement allows you to fix the separation date in writing. This makes getting a divorce later a lot easier since the date was put into the agreement and less likely that there would be a disagreement to when you actually separated from your spouse.

Also, a separation and property settlement agreement allows you to do the following:

  • distribute marital and separate property
  • distribute marital and separate debt
  • decide if there is or is not going to be spousal support (in the form of alimony or a lump sum)
  • decide what happens with pensions and retirement funds
  • consent to child custody and support
  • decide whether or not the agreement is incorporated in the divorce decree
  • agree to pay or not pay for children’s college expenses
  • decide which party gets to claim the children for tax purposes
  • decide appropriate remedies for breach of the agreement

 

So while there are many benefits to having a separation and property settlement agreement in North Carolina, probably the best reason is the cost. Litigation in court over these issues will be much more expensive than working amicably with the other side and having an attorney draft an agreement.

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