Separation Agreement Anxiety
Should you be feeling it? That all depends on how much you know about what you’re getting into.
Let’s start with the basics: what’s the difference between separation and divorce? Okay, that may not be quite as easy as it sounds. Because unlike in many other states, the process of legally ending a marriage in North Carolina is typically a two-step process.
Step One – Separation
First comes separation. This officially begins on the day you and your spouse start living apart, and you don’t need any paperwork to do that. However, according to attorney Erik Mazzone, ignoring the paperwork is not a smart thing to do.
“A separation agreement is a legal document that spells out specifics on critical issues: how property is divided, how much alimony will be paid, how child custody and support will be handled. It can protect you from future misunderstandings and changes in living situations.” Mazzone says that some couples need the help of an attorney to create a separation agreement, while others are able to handle negotiations themselves.
Step Two – Absolute Divorce
The only issue pertaining to the end of a marriage that cannot be contained in a separation agreement is the divorce itself – the final, officially recognized dissolution of the marriage. That’s step two.
“This is, from a legal perspective, the easiest part of the process,” says Mazzone. “The divorce itself does not involve the issues of money or children; it simply represents a change in marital status. While it involves fewer critical issues than the separation agreement, it does involve a number of documents. And a divorce can only be obtained after a year and a day of separation.”
So everything is crystal clear, right?
Actual Separation Agreement Problems
Ask Tim.* He thought his separation agreement meant he would pay alimony until his divorce was official, when a judge would decide about long-term issues. He was wrong; he learned he could be paying alimony forever.
Which is, believe it or not, relatively mild proof that negotiating in the face of the breakup of a marriage can be a daunting task. Things can get ugly, out of control and end up hurting children, friends and family.
Ask Sharon. She wanted the police to help her get her children back from her husband, who refused to return them. She showed the police her separation agreement as proof that she had custody. They refused to help.
It’s understandable, then, that many couples can’t do it alone. That’s why lawyers and other professionals are there to smooth the way and offer experienced guidance. Even with help from outsiders, it’s extremely difficult for ex-partners not to get tied up in the issues that led a marriage to fail in the first place
Ask David. He, along with a well-meaning counselor, struggled through the legal thicket of his separation agreement, trying to figure out if he had the authority to continue mental health treatment for his child after the mother wanted it stopped.
So what should you do? Ask Mazzone.
Hard as it may be, he says that your very best preparation for negotiations is to get your emotions under control and consider “some basic, and not-so-basic, points.” Specifically, he says, understand:– what you really want and need– what your spouse really wants– what your financial situation is, and is likely to be– what the law has to say on the matter Mazzone is a North Carolina reporter on emerging domestic case law for the annual Law in Fifty States reference guide, and is a frequent lecturer on domestic law issues.
“The best general piece of advice I can offer,” he says, “is to do your homework. Don’t try to negotiate without getting a handle on this information, whether you’re negotiating for yourself or you’re having someone negotiate for you.”
Ask Rebecca, who unfortunately has found herself in a very bad spot. She can’t afford to get her children all the things they need. She hasn’t had an increase in child support in six years – it wasn’t spelled out in the separation agreement, and now she doesn’t know if an increase is even an option.
If you go it alone: Negotiating 101.
Thus armed, Mazzone offers some tactics to try and attitudes to assume, if you do decide to try one-on-one negotiations with your spouse.
1. Negotiate in a neutral place where you feel safe, at a pre-planned time. “Break off negotiations immediately if things get hot – another fight isn’t worth it, and will make the next session that much harder.”
2. “A good starting point for settlement discussions is for you and your spouse to list all the areas that you agree on. There may be more than you think.” That lamp from Aunt Edna? You get to keep it. The petrified rock collection? You’ll part with it willingly.
3. Now get to the harder stuff – what you can’t agree on. Try to hear what your spouse has to say, without arguing the points. Try to get your spouse to hear what you have to say, without raising your voice. “Be careful not to fence yourself in too early by indicating some dollar amount that you’ll offer, or that you’re willing to accept – this can either set expectations too high, or cheat you out of what you’ll need to live on.”
4. “Think about the items of property you’ll be getting when you and your spouse make guesses about their value; the lower the values on your items, the more items you’ll get in a 50% division.”
5. Address all the issues at once. “Even though you have the option to deal with key areas – child custody, property, support – at different times, it generally makes more sense to try and do it all at once. This not only promotes closure and can reduce expenses, but also opens up more options for creative negotiations.”
6. Look at the facts, not what you or your spouse imagine to be the facts. And see if the two of you can use those facts to create solutions, rather than new areas for conflict. “At impasses, talk together about what the likely outcome would be if you have to go to court. This is one place your homework or outside expert will come in handy. Statistics predict that you will be able to settle the issues that may seem insurmountable now.”
7. Look for points of leverage: “secrets your spouse doesn’t want to make public; his or her attachment to a particular piece of property; a sense of duty; or pride in being known to do the right thing.”
8. “The most important fact to keep in mind is that once signed, separation agreements are legally binding contracts.” So he strongly advises that you at least meet with an attorney to review any proposed settlement agreement before you put pen to paper.
One way or another, things will get settled.
Mazzone also offers this caution: “If you can’t settle under your own power, don’t wear yourself out trying. And trust your instincts on what you want – but not necessarily on what the implications of your decisions might be.”
Move on to the next step – get help from an attorney or another professional. “Talking to an attorney now can help you avoid expensive miscalculations and devastating mistakes. If even this outside help isn’t successful in getting things resolved, then you go to the court of last resort” – that is, the courts themselves.
In the end, though, the vast majority of couples in North Carolina opt for private settlement. Which, according to Mazzone, should really come as no surprise. “It’s a much less contentious, difficult and unpredictable outcome than letting things deteriorate the point that they can only be left to the wisdom and whim of a judge.”
Ask Alicia. She was expecting the worst. But thanks to a wise and experienced relative, she planned ahead, got some good counsel upfront, and went into negotiations with confidence. She came out of the process with a fair settlement, her future secure and – most surprising of all to Alicia – her nerves intact.