(For a printable version, click here.) We are having serious marital problems. When a husband and wife face serious marital problems, they often have difficult legal questions that must be answered. The couple should first try to resolve their differences with the help of a neutral third party such as a minister or a marriage counselor. Lawyers are bound by the Rules of Professional Conduct which prohibit representing both sides in an adversarial – or potentially adversarial – situation.
This brochure offers some suggestions and general rules of North Carolina law. If you are not able to resolve marital problems, CONSULT A LAWYER before you or your spouse leaves the marital home. Can we be separated and continue to live in the same house? In order to be separated, the husband and wife must reside at different residences.
What if my spouse does not abide by the terms of the separation agreement?
A separation agreement can be enforced by a court order.
Do we have to sign papers in order to be officially separated? You are legally separated as soon as you begin living separate and apart with the intention for the separation to be permanent.
Although the law does not require a couple to sign paperwork when they separate, you should consider drafting a separation agreement if you decide to live apart. A separation agreement is a written contract between a husband and wife.
Never sign a contract without understanding the meaning and the legal impact of each provision.
What if my spouse refuses to sign the separation agreement?Subjects such as child custody and support, property division, spousal support, and possession of the marital residence may be agreed upon in a formal separation agreement.A lawyer should always be retained to prepare a separation agreement and supervise the signing (or to review an agreement prepared by the other spouse’s attorney).To obtain a court order, the spouse seeking to enforce the agreement must file a lawsuit against the other spouse and ask the court to find that the other spouse breached the agreement and order him/her to specifically perform his/her duties under the contract. Although the law presumes that the marital property and debt should be split evenly between the spouses, the court may award a larger share of the property to one spouse under certain circumstances.Consult a lawyer if you need to enforce a separation agreement (or if you are the defendant in a lawsuit seeking to enforce a separation agreement). If the husband and wife are unable to resolve all issues with a separation agreement, then a court order may be necessary. Before a court can have jurisdiction (authority) to enter an order, one spouse must file a complaint initiating a lawsuit against the other spouse. For example, property acquired by either spouse before the marriage or by gift or inheritance during the marriage is generally considered to be separate property and exempt from division. Does the court consider adultery when it makes a decision regarding division of property? Adultery on the part of either spouse is generally not relevant to the issue of property division.Divorce cuts off the rights to alimony and equitable distribution.