Even if the parties are not completely sure how to settle any particular issue, or all of the issues, it’s probably a good idea to start the process by meeting with an attorney. At our office we meet with one spouse or the other and represent only that spouse going forward. Sometimes the other spouse hires an attorney to negotiate the provisions of the agreement, but other times he or she chooses not to retain an attorney since the contract is amicable.
A Separation Agreement, as a contract, can include or exclude provisions based on the parties’ agreement. It has a lot of flexibility when compared to a court order. The terms of a Separation Agreement need to comply with state and federal laws, but the parties have a lot of freedom to work out terms that are mutually beneficial. One example is an agreement for one party to pay for a child’s college tuition after the age of 18. The court would not have ordered that in North Carolina, but parties can sign a binding contract with that term included. Or the parties might want to sign an agreement to work out property issues and waive alimony, but then go through the courts for a custody and child support order. Each client’s needs are different, and an attorney can advise you on the benefits of a Separation Agreement in your particular situation.
After a year of separation, either party can file an action for absolute divorce and request that the Separation Agreement be incorporated. That means that the Separation Agreement would be included as part of the divorce judgment and is converted into a court order. If the parties opt not to request incorporation, the Separation Agreement is enforceable as a contract both before and after the final divorce judgment unless spelled out otherwise in the agreement.