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Understanding Separation Agreements and Consent Orders for Family Law Cases in North Carolina
Here at Gary Britt Law in Fayetteville, North Carolina, one of the most common client questions is “what if we agree to a settlement?” and I would like to take a few minutes to explain how people can amicably resolve their family law issues in a legally binding manner that protects you and your family.
Understanding the intricacies of divorce, separation and family law can be a daunting task, especially during what might be a challenging time in your life. North Carolina allows for spouses to enter into a contract referred to as a “separation agreement” or “separation agreement and property settlement” resolving the financial issues related to the end of a marriage such as spousal support (post separation support and alimony), child support (but not with the same force and effect of a court order), and the division of property (equitable distribution) which is a legally binding contract between the spouses. It is important to note that these agreements are not court orders and do not require court approval, but to enforce the agreement, one needs to file a lawsuit with the Court, and in some cases, the agreement could be found to be unenforceable due to certain legal issues. So, it is important that you have an experienced attorney like Gary Britt to advise you during this process and draft the separation agreement for you.
Child custody agreements are only binding if they are in the form of a court order signed by a judge and entered by the Court. This requires the filing of a lawsuit for custody, serving the opposing party, the parties agreeing on the terms of the agreement, having the agreement in the form of a court order, both parties signing the order, presenting the order to the court for signing by the judge, entering the signed order into the clerk of court’s file, and then serving the order. So, while you could certainly attempt to do this on your own, all of these steps create multiple areas where one could make an error unknowingly and ruin the entire process, and as such, you need guidance and knowledge of an experienced and skilled family law attorney like you would have with Gary Britt Law.
SEPARATION AGREEMENTS
Making the choice to separate or end a marriage is never easy. Amid the emotional turmoil, there’s a myriad of practical decisions to navigate. In such moments, a separation agreement can be a beacon of clarity, offering structured guidance to couples. Let’s delve into why separation agreements are often an optimal path for many.
What is a Separation Agreement?
Separation Agreements are provided for in North Carolina General Statute § 52-10.1 When discussing separation agreements with clients at Gary Britt Law, there are certain questions and issues I review with clients to ensure that (1) a separation agreement is the best option for the client and (2) that the client will not be wasting time and money by going through the process of having a separation agreement drafted when the other spouse is unlikely to be reasonable and agree to enter into a fair agreement that protects your rights in an equitable manner.
I am going to discuss why you should consider separation agreements and consent orders. First, let us discuss whether a separation agreement could be right for you.
Why Consider a Separation Agreement?
1. Control
You get a determining voice in the matters affecting your life directly, rather than leaving the issues up to a judge. If you and the other spouse can reach an agreement in this manner, why not be the masters of your own destiny by entering the agreement you both want?
2. Flexibility
At Gary Britt Law, you can be sure you will find attorney who can help you tailor the agreement to your unique situation, ensuring your concerns are addressed. Every couple is unique, and every marital situation has its nuances. A separation agreement provides the flexibility for couples to create solutions tailored to their individual needs. This level of customization can address specific concerns or unique assets that may be overlooked or handled more generically in a court setting. We will sit together and go through all your assets / property (financial, personal and real) and liabilities (lawsuits, debts and/or judgments against you and/or your spouse), discuss what is important to you and attempt to find a way to ensure all of your desires are met in a manner with which your spouse (the opposing party) will agree.
3. Confidentiality and Privacy
Court proceedings are public records. A separation agreement allows for a more private resolution. Unlike a lawsuit for spousal support (post separation support and alimony), child support, or equitable distribution, you can ensure that your private financial information remains private when you use an out-of-court settlement through a separation agreement to resolve the financial issues that arise with a separation and divorce.
4. Cost
A well drafted separation agreement that covers all of the necessary areas and protects your legal rights in a suitable manner that will withstand legal challenges is not “cheap,” but negotiating, drafting and entering into a binding separation agreement is far less expensive and less emotionally draining than the protracted litigation that comes whenever there is a lawsuit for spousal support (post separation support and alimony), child support and/or property division (equitable distribution).
5. Preservation of Amicability
Separation agreements can reduce the acrimony and contentiousness that arises when a marriage ends. By mutually deciding on the terms, couples can often maintain a more civil and respectful relationship. This is especially vital if children are involved, as it paves the way for smoother co-parenting. Also, by addressing and agreeing upon contentious issues upfront, couples reduce the potential for future conflicts. This proactive approach can prevent misunderstandings or disagreements down the road.
6. Emotional Well-Being
The litigation process can be emotionally draining. With separation agreements, there’s less adversarial back-and-forth, leading to reduced emotional stress and a smoother transition for all involved.
7. Expediency
Court proceedings can be prolonged. Separation agreements often provide a quicker resolution, allowing both parties to move forward with their lives without getting entangled in prolonged legal battles.
Things to Remember
It’s essential that the agreement is fair to both parties. If a court finds it excessively one-sided, the court could invalidate the agreement if one party becomes dissatisfied with the agreement, or one party seeks to enforce the agreement and the court finds that the agreement should be invalidated when the issue is brought up by the party claimed to be in violation.
Always get legal advice before signing. You can ensure Gary Britt Law can help ensure your rights are protected and the document aligns with your interests.
What Are The Requirements for Separation Agreements in North Carolina?
Separation agreements in North Carolina play a pivotal role in assisting couples to navigate through the complications of marital dissolution. These agreements offer a structured approach to resolve issues without the need for a lengthy court process. Let’s delve into the procedural requirements and the reasons separated couples often favor these agreements.
- Voluntary Execution: Both parties must enter into the agreement voluntarily, without any coercion or undue influence.
- In Writing: All separation agreements must be in writing to be enforceable.
- Signed by Both Parties: Both spouses must sign the agreement for it to be valid.
- Notarization: The signatures of the parties on the agreement must be notarized.
- Provisions Covered: The agreement can incorporate a wide range of provisions, including property division (both real and personal property), alimony, post-separation support, and child-related concerns (although child custody and support are subject to court review for the best interests of the child).
Are There Times When A Separation Agreement Isn’t the Best Option?
Absolutely! There are certain situations when a separation agreement is not in your best interests. If your spouse is unwilling to be reasonable, is not responsive or is likely to be someone who may not abide by a contract agreement, a separation agreement is probably not right for you. Sadly, there are people who will only uphold their responsibilities when there is a threat of more immediate legal repercussions, and those people are the type who only respond when there is a court order that forces someone to act. In such a situation, clients are not best served by separation agreements.
What Are The Disadvantages of a Separation Agreement?
Disadvantages of Using a Separation Agreement for Equitable Distribution, Post-Separation Support, and Alimony
While separation agreements offer numerous benefits, they aren’t without drawbacks. It’s crucial for couples to understand the potential pitfalls before deciding on this course of action. Here are some disadvantages to consider:
1. No Judicial Oversight:
Courts often ensure a fair and unbiased resolution for both parties, taking into account various factors and circumstances. In the case of separation agreements, there’s no such oversight. This might lead to one party being at a disadvantage, especially if they aren’t well-informed about their rights or the legal implications of the agreement.
2. Potential for Coercion:
In situations where there’s a significant power imbalance—whether financial, emotional, or informational—one party may feel pressured into accepting terms that aren’t in their best interest.
3. Difficulty in Modification:
While court orders can be modified upon showing a substantial change in circumstances, modifying a separation agreement typically requires mutual consent. This can be challenging if one party benefits from the existing terms and is unwilling to negotiate changes.
4. Legal Complexity:
Drafting a comprehensive separation agreement that addresses all potential concerns requires a deep understanding of the law. Without experienced, knowledgeable legal representation, parties might overlook critical clauses or fail to protect their interests adequately.
5. Lack of Finality:
Unlike a court order, which once passed becomes the final say on a matter, separation agreements might be contested later if one party believes the agreement was unfair or if there was a lack of disclosure about assets or liabilities.
6. Enforceability Issues:
While separation agreements are legally binding, enforcement can sometimes be more challenging than with a court order. If one party breaches the agreement, the other may need to go through legal processes to enforce its terms, which can be both time-consuming and costly.
7. Emotional Stress:
Negotiating the terms of a separation agreement can be emotionally taxing. Without a mediator or an objective third party, discussions might devolve into disputes, adding to the emotional strain of separation.
8. Overlooked Details:
Especially in complex financial situations, couples might unintentionally omit assets or not address potential future issues, leading to disputes down the line.
9. Ambiguity:
Poorly drafted agreements might have vague or ambiguous terms, leading to different interpretations and potential future conflicts.
10. Short-Term View:
During the emotionally charged time of separation, individuals might prioritize immediate relief over long-term benefits. This can result in agreements that aren’t sustainable or beneficial in the long run.
In conclusion, while separation agreements can provide a flexible and personalized solution for many couples, they’re not always the best option for everyone. Given the complexities and potential downsides, it’s essential to consult with legal professionals when considering this path, ensuring that both parties’ rights and interests are adequately protected.
How Can Gary Britt Law Help With a Separation Agreement?
Drafting a separation agreement is an art, combining legal knowledge and experience with an understanding of each client’s unique circumstances and desires while also ensuring the agreement will stand any possible legal test. At Gary Britt Law, you will have an attorney who has spent years helping individuals in Fayetteville, North Carolina, Fort Bragg / Fort Liberty, Cumberland County and surrounding areas understand and create these agreements. When you are ready to navigate this process, Gary Britt Law will be here to provide guidance every step of the way.
CONSENT ORDERS
What Is A Consent Order?
Consent orders are legal agreements resolving litigation in the form of a court order signed by a judge. Sometimes – most often in family law cases involving child custody – there are lawsuits filed for the sole reason of putting the matter before the court so that the parties can enter a consent order. These “friendly lawsuits” meet the requirements to make a claim for something under the law but lack any negative allegations about the opposing party, and often the other party will accept service via a notarized statement filed with the court to expedite the process, instead of being served via a certified mail or a sheriff’s deputy.
Why Choose a Consent Order?
Gain Control Over the Outcome
When you opt for a consent order in North Carolina, you are taking control of your situation. The courts can be unpredictable, and their decisions may not align with what you consider to be best for your family. A consent order allows you and the other party to draft terms that suit your unique needs, especially when it comes to child custody.
Save Time and Money
Court battles are not only emotionally draining but also time-consuming and costly. Through a consent order, parties can often avoid the lengthy legal processes and associated costs. This way, you save both time and money that can be better spent on your family.
Reduce Conflict and Stress
Family law issues can bring up strong emotions and lead to bitter disputes. Consent orders can act as a pathway to more amicable resolutions. By mutually agreeing on terms, you can significantly reduce the tension and stress that come with court battles.
Confidentiality
Court proceedings are public records. If you prefer to keep the details of your family matters private, a consent order eliminates the need for a trial and thus keeping private much of the information from the testimony that would have been presented at trial offers. Thus, even though the pleadings and consent orders may be public record, they still offer a much greater level of confidentiality that a courtroom and trial cannot provide.
Flexibility for Military Families
To my friends in the military communities at Fort Liberty (formerly Fort Bragg), Gary Britt Law knows that your family situations can be more complex due to the nature of military life. Consent orders provide the flexibility to account for deployments, relocations, and other unique circumstances you may face. With Gary Britt Law, you can be certain that your specific, unique needs will be addressed by someone who has spent his entire career representing military families.
Legal Strength and Enforceability
Once signed by a judge, a consent order is as enforceable as any court ruling. This gives you the peace of mind that the agreement you have worked hard to achieve will be upheld and that any efforts to violate the Order can be punishable by the Court.
The Process of Getting a Consent Order in North Carolina
- Negotiation: First, both parties need to agree upon the terms. This often involves legal counsel and may include mediation.
- Drafting: Once the terms are clear, the Consent Order is drafted, outlining the specifics of the agreement.
- Review: After the draft is prepared, both parties review the document to ensure it’s accurate and fair.
- Signing: Both parties sign the Consent Order, indicating their acceptance of the terms.
- Judicial Approval: The final step is getting a judge to review and sign off on the document, making it legally binding.
Special Considerations for Military Families
If you’re part of our proud military community stationed at Fort Bragg or Fort Liberty, special considerations come into play in family law cases, including Consent Orders. Frequent deployments, changes in duty stations, and other unique circumstances can complicate matters. My experience serving military families enables me to navigate these complexities effectively.
Can A Consent Order be the WRONG Solution?
While Consent Orders are often a valuable tool in resolving family disputes, there are times when they may not be the best option for you. Here’s why.
1. Imbalance of Power and Unequal Bargaining Position
Consent Orders require voluntary and mutual agreement between parties. If there is a significant imbalance of power, whether financially or emotionally, one party may feel pressured to agree to terms that are not in their best interest, especially when it comes to child custody.
2. Complexity of the Issue
In highly complex cases, where substantial assets, international issues, or complicated custody matters are involved, a Consent Order may oversimplify the situation if the parties are not willing to work through all of the complexities in proper detail.
3. The Opposing Party Is Unreasonable
If the opposing party is not willing to be reasonable when it comes to the terms of a consent order and refuses to agree to anything that is fair to you, you should never agree to a consent order.
Consult with Gary Britt Law for Personalized Guidance
At Gary Britt Law, you will find an attorney who has dedicated years to serving the unique needs of families throughout North Carolina, military and civilian alike, and I can help you determine if a separation agreement and/or consent order is the right course for you. If a separation agreement and/or consent order is not ideal for your family law case, you can be certain that Gary Britt Law will work with you and help guide you through alternative options to best serve your interests.
In my years of practice serving Fayetteville, North Carolina, Fort Bragg / Fort Liberty, Cumberland County and surrounding areas, I have seen firsthand how separation agreements and consent orders can bring about peaceful resolutions in family law cases. If you are in a position where you think a consent order could help you, do not hesitate to reach out. Gary Britt Law can be your trusted partner, and we can work together to find the best path forward for you and your family.