In a family law context, do-it-yourself separation agreements present an area that is laden with potential problems. A separation agreement, which may also be referred to by other names such as a Marital Settlement Agreement or Contract of Separation and Property Settlement Agreement, is a written contract between a husband and wife wherein they reach various agreements related to their marital separation.
Some of the dangers of a do-it-yourself separation agreement are delineated below.
Many people sign a separation agreement prepared by themselves or their spouse without consulting an attorney to discuss the agreement or their legal issues. As such, they may be waiving rights they do not know they have, or do not understand they are waving, or agreeing to something without fully understanding the legal consequences. An example is the husband who agreed to make continuing alimony payments to his wife. Due to language in the do-it-yourself separation agreement, the husband’s agreement to make the alimony payments was binding on his estate. As such, he was obligated to make the payments even after his death.
A form separation agreement may not conform to the laws of the governing state. In North Carolina, an agreement that is against public policy is invalid.
A form separation agreement may contain language that is contrary to the parties’ intentions. By way of example, there may be a provision specifying that the separation agreement will be incorporated into the divorce decree. Most people in the general public have no idea what the legal ramification is of incorporating the separation agreement into the divorce decree. In North Carolina, if a separation agreement is incorporated into the judgment of divorce, then the agreement becomes part of the court order and is subject to modification. Depending on your situation and the terms of your agreement, you may want your separation agreement to remain a contractual obligation which, unless contrary to law or the agreement, is not subject to modification and does not become a matter of public record.
In some situations, the danger of using self-help legal forms is not what the form says, but what the form does not say. The language may be so vague and ambiguous that it does not provide parties with adequate legal protections or sufficient detail to safeguard them from potential problems.
In other situations, problems can arise when consumers add language to the contract that is not legally binding. An example would be a provision in a separation agreement that waives a custodial parent’s right to seek a modification of child support. In North Carolina, child support is always subject to modification by a court having jurisdiction. Therefore, even if the parties have an agreement stating child support will not be modified, the court has authority to override such an agreement.
A separation agreement is not an agreement that should be entered into without fully understanding the provisions contained therein and the legal rights and responsibilities of both parties. Family legal matters can be very complicated, and separation agreements may deal with long-term issues such as child custody, child support, spousal support, division of retirement accounts, and tax matters. You owe it to yourself and your family to seek the advice and assistance of a competent attorney before you sign a separation agreement or any other kind of contract.
This article is for information purposes only and is not to be considered or substituted as legal advice. The information in this article is based on North Carolina state laws in effect at the time of posting.