This course follows along with a sample separation agreement which can be downloaded here.
In paragraph 24, we are talking about whether or not the document will be “incorporated” at the time of divorce. This paragraph suggests, as it’s drafted here, that the agreement will not be incorporated into the divorce.
So what does “incorporation” mean? Incorporation means that we’re taking a contract, which is separate from court, and a private contract between you and your spouse, and we are making it into a court order that will be apart of a court file. There are many reasons to do it and there are many reasons not to do it.
One of the reasons not to do it would be that when you take a contract and turn it into a court order, you are making that court order potentially modifiable, and sometimes we don’t want the contract to be modified. We like the terms and want to make sure that they stay in effect, and that the court has the right to enforce it but the court doesn’t have the right to change it in any way – “modify” it in anyway.
So that’s a reason not to incorporate. In some jurisdictions, in some counties, it is a very common thing to incorporate the separation agreement into the divorce, in other counties it’s very rare for us to do that. You’ll see that, listed in Wake County, that’s not a very common thing for us to do anymore, and so we have included the provision that says we won’t incorporate into the divorce.
Now keep in mind, when we do that, that means this is a separate contract from the divorce, it will continue beyond the divorce, it’s going to be enforceable beyond he divorce, it’s a contract that you and your spouse sign and it’s enforceable by breach of contract in the future if either of you needs to enforce that document.
Paragraph 25 talks about construction. Construction means how to construe, or how to interpret, a document, and so we will interpret this document as a document related to a separation and property settlement, and the laws in North Carolina surrounding contracts for separation agreements will be included, and we would use those laws to interpret what do they mean in the future
Paragraph 26 talks about, well what if we have documents in the future that we didn’t realize specifically say we needed to get signed, but they effectuate the intent of this agreement? This means that each of you is agreeing that in the future if you’re presented with a document like potentially a car title, some kind of instrument that maybe you weren’t given at the same time that you signed the agreement, but that does effectuate the intent of the agreement, you’re agreeing that right now you’ll sign it, so it puts you on the hook to make sure that you sign and that your spouse will sign documents in the future if you need those.
Paragraph 27 relates to a separate document that we can sign. That document is called a memorandum of agreement and a memorandum of agreement is a shortened version of this document. It includes the real estate waivers that we like to see in place and sometimes a lender for a mortgage will want to see a recorded memorandum of agreement.
So what does that mean? Well, the separation agreement itself does not need to be recorded in order to be valid. The separation agreement, once it’s signed and notarized, it’s a valid, enforceable contract on its own. However, sometimes when people are getting a mortgage, or refinancing a mortgage prior to divorce, they need to show the render at the register of deeds that they have a signed and valid separation agreement.
We will record with the register of deeds a shortened version of this document, because we want to protect privacy. We don’t want to have all of the provisions of the separation agreement on public record. Instead, we provide a shortened version of it that contains all of the provisions and waivers that the lender would like to see in place.
You will find on Rosen.com an example of a memorandum of agreement that you can download and use as well.