Separation Agreements: The First, Best Option
April 7, 2014 | Separation
Divorce doesn’t always mean you are going to end up in a courtroom, fighting to the bitter end over every nickel in the bank and every chair and end table in the house. In fact, that usually doesn’t happen. More often than not, divorcing couples find a way to come to agreement on some or all of the issues related to dividing up their things and dealing with the children. Litigation is the last thing that happens, after everything else fails.
The first step is to reach an agreement before anyone ever files anything with the Courts. In North Carolina, you can sign a Separation Agreement, which is simply a type of contract, that deals with anything and everything related to splitting up. That includes child custody, support, alimony, dividing up property and bank accounts, who gets the pets, and even how you file your taxes. If you can’t reach an agreement, then you might file a lawsuit and keep trying negotiate, then go to mediation and try to hammer out a deal, keep trading settlement proposals as trial approaches and then, finally, if all of that fails, you have a trial and let the judge decide.
There are two primary advantages to a Separation Agreement: the lower cost and the low risk.
Litigation is costly. There is no way around that fact. Attorneys get paid by the hour for most family law cases and preparing for trial and going to trial takes a lot of hours. Even the shortest, simplest custody hearing will probably cost you a couple thousand dollars. Entering into a Separation Agreement takes far less time and preparation and typically costs less to do than even the simplest of litigation. Sure, there are some instances where the negotiation over the agreement gets very involved and a lot of back-and-forth takes place before an agreement can be reached. That runs up costs. But as a general rule, it rarely comes close to costing what a lawsuit costs.
The second advantage is the low risk nature of entering a contract. Any time you walk into a courtroom, you are taking a big risk. You may have what you think is the best argument in the world, a great set of facts to back up your position, and an experienced attorney ready try the case, and still walk out of the courtroom with far less than you ever expected. By the same token, you could have a terrible case, expect to walk away with nothing you were asking for, and leave the Courtroom having gotten more than you ever expected. There are just too many variables to predict what will happen, or how a case will turn out. If you enter a separation agreement, you know exactly what you are getting (and giving away) before you put pen to paper and sign it.
There are some drawbacks to separation agreements. They can be more difficult and expensive to enforce than a court order because rather than holding someone in contempt, you have to sue for breach of contract to enforce it. Child support and child custody provisions of Separation Agreements can be modified by a Court. A poorly drafted agreement can have provisions that are unenforceable because of the way that they are written. There are some rare cases when a Separation Agreement is not the best solution. But, in general, the potential drawbacks to a Separation Agreement are far outweighed by the cost and the low-risk aspects of these contracts.
So, don’t think that every separation and divorce ends up in Court. Most of them don’t, they end up being settled for much less and much more easily in a Separation Agreement.