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SEPARATION AGREEMENT SURVIVAL GUIDE
by Mark E. Sullivan Family Law Attorney
 

Publisher's Note:  The following is an excerpt from an info letter prepared by Mark E. Sullivan, a family law specialist with Sullivan & Grace, P.A. in Raleigh, NC, and it is reprinted here with permission.  For more information call them at 919-832-8507 or visit them on the web at www.ncfamilylaw.com.  Thanks to Mark for letting us reprint this article in the Single Parent Times.
 

The purpose of this handout is to assist you in answering questions that you may have regarding separation agreements. It is, of course, impossible to answer all of your questions in a short brochure such as this, so we want to encourage you to ask other questions of your lawyer at the appropriate time.

Question. Do I have to have a separation agreement?

Answer. No law requires a separating couple to execute a separation agreement, but it is a wise idea if there are debts, children, support claims or property involved and the parties want to settle these matters in writing. Oral promises between spouses are worthless and unenforceable.

Question. What is a separation agreement?

Answer. A separation agreement is a contract between a husband and wife in which they resolve such matters as property division, debts, custody and support when they separate from each other.

Question. Who prepares a separation agreement?

Answer. It is best to have your own attorney prepare it for you. The separation agreement is not valid in North Carolina unless both parties have signed and their signatures are notarized. Never try to prepare such a complex and important document yourself - this is a job for a specialist.

Question. Can we divide our property in a separation agreement?

Answer. Yes. A couple that is separating can agree on a division of property in their separation agreement, and that agreement will be binding on them. The property to be divided consists of real property (such as land and the buildings on it), tangible property (cars, jewelry and furniture for example) and intangible personal property (such as bank accounts, stocks and bonds, vested pensions and life insurance).

Question. Is my spouse required to sign a separation agreement?

Answer. No. "Agreement" means that both parties sign voluntarily. You cannot compel your spouse to sign a separation agreement or to agree to the terms you wish to impose on him or her in the agreement.

Question. Does a separation agreement help me to get a divorce?

Answer.  A separation agreement is not "proof" that you have been living separate and apart from your spouse. It does not make divorce in North Carolina easier or more difficult to obtain.

Question. Can our separation agreement settle who claims the tax exemption for our children?

Answer. Yes. The 1984 Tax Reform Act allows the parties to agree as to who can claim the children as exemptions for income tax purposes. Without a written agreement, the parent who has physical custody of the child for more than half the year will get the dependency exemption.

Question. What are the factors I should consider in transferring the exemption?

Answer. Consider these issues:

• Should the dependency exemption be traded, instead of given, to the noncustodial parent in exchange for an increase in child support? Even a small increase in child support would help offset the tax increase paid by the custodial parent, and the other parent can better afford such an increase due to the taxes he or she saves by claiming the exemption on federal and state tax returns.
   
• Should you alternate the tax exemption between parents? For example, the father could claim the exemption in even-numbered years (1996, 1998, and so on) and the mother could do so in odd- numbered years. Or the father could claim one child and the mother could claim the other. Such alternation would lessen the impact of higher taxes on the custodial parent.
   
• Should you condition the transfer on the noncustodial parent's regular and full payment of child support? Instead of transferring the exemption permanently without regard to payment of child support on time, some custodial parents agree to transfer of the dependency exemption only if the other parent is current (not in arrears) on child support payments by December 31 of each year.