Do I Really Need a Separation Agreement?

While most couples understand the importance of a separation agreement due to how essential one is in their case, others might question whether or not they are truly necessary. This might be a question asked by couples who have no children, don’t own real estate, or who are simply just amicable and want the best for their spouse as they split.  Couples in these cases do not need to include child support and a visitation schedule in their agreement, equitable distribution of their home, or many other items that are very typical in a separation agreement.  There will be no disagreements about travel and college expenses or boats and cars. We just need to go our separate ways; there is nothing to put in an agreement.   This can be a common, albeit misguided, thought.

There are always advantages to having a separation agreement, including for a couple who might classify their situation as easy and care-free. Even if you have no children, no property, and believe your situation is straightforward, you will still benefit from having a separation agreement.

What can a separation agreement accomplish?

A separation agreement is a contract between spouses. It is valid once both parties have signed and had their signatures notarized.  It is a private contract, so it can reflect each couple’s needs and wishes.

The agreement can address who will stay in the marital home (including a rental property) and how furniture will be divided.  In North Carolina, parties must be under separate roofs for their separation period to begin.  Many clients think that just sleeping in separate bedrooms begins a separation period but it doesn’t.  In North Carolina, one spouse needs to actually leave the home.  This can mean that equity in the home needs to be discussed and divided, or that security deposits on an apartment need to be addressed as well.

“Possession is 9/10ths of the law”; this saying has been around awhile.  It is also true when it comes to personal property.  Personal property includes cash, furniture, books, household appliances, etc.  A separation agreement isn’t just for real estate and child custody agreements – they can detail who will take the large screen television, computer desktop, vitamix, kayak, and peloton bike. We recommend that the person leaving the home or apartment take all his or her personal property as soon as possible after separation. The separation agreement can state a date for all property to be removed.

Who gets which car or vehicle is another issue that should be addressed in a separation agreement.  There may be loans on the autos, so the couple should detail who will make payments, be responsible for insurance, repairs, etc.

Health insurance coverage should be discussed also.  It is common that one spouse is covering another on their employer provided health insurance plan.  Separated parties can continue insurance coverage until the date of divorce.  The costs of that coverage and who pays it is another separation issue that be specified in an agreement.

Possession of the family pets should be covered in the agreement as well and, while not advisable due to difficulty to enforce, some clients also include a visitation plan if the parties can agree.

Joint bank accounts and credit card accounts need to be managed as well.  A spouse needs to realize that the other spouse can withdraw 100% of all monies in a joint account.  Joint credit cards can be used by either party.  A good separation agreement will detail how these accounts need to be handled and closed.

Gym memberships and cell phone plans might include the other spouse.  Again, these are accounts and debts that need to be addressed by the couple.

Separating is never easy, but hopefully this article has answered your question about why a separation agreement is necessary for all splitting couples.  If you require help with yours, call us at 919-787-6668 or visit our Do It Yourself Divorce platform.

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