There are many websites that offer online forms designed to enable spouses to prepare a separation agreement without the assistance of an attorney. However, signing a separation agreement without first reviewing and discussing it with an experienced family law attorney can leave you exposed to unintended financial and legal consequences.
Reviewing and discussing your separation agreement with a family law attorney is especially important if (1) you or your spouse prepared the separation agreement using a form obtained online; or (2) your spouse hired an attorney to prepare the agreement. Forms that are available online may not conform to North Carolina law or may contain provisions that are inconsistent with your intentions. Another concern is that you and your spouse may add provisions to the agreement that are unenforceable, such as agreeing that child support will not be changed or modified. Additionally, in North Carolina, an attorney cannot represent both spouses in the preparation of a separation agreement or other divorce related matters because the spouses have competing legal interests. Therefore, if your spouse retained an attorney to prepare a separation agreement, then that attorney can only give legal advice to your spouse regarding the terms and implications of the agreement.
Hiring your own attorney to review, negotiate or prepare your separation agreement can ensure, among other things, that the agreement:
- is fair and reasonable;
- protects your rights and interests;
- accurately sets forth your intentions;
- complies with applicable laws; and
- is properly signed and acknowledged.
Perhaps most importantly, an attorney can give you counsel that helps you make informed decisions and ensure that you understand the full legal effect of the terms and conditions of the agreement. Your attorney can advise you regarding the legal consequences and financial considerations of possible settlement options, such as tax implications associated with paying or receiving alimony, advantages and disadvantages of having the marital home distributed to you or your spouse or put on the market for sale, and whether your separation agreement should be merged into your divorce judgment.
A separation agreement may deal with long-term and future issues, such as payment of alimony or releasing or assigning pension or retirement benefits that may not be payable until the future. Therefore, it is imperative that the provisions be carefully considered and fully understood before the agreement is signed. Having an experienced family law attorney representing you in the negotiation and preparation of your separation agreement can help you avoid the feeling of “buyer’s remorse” that comes with wondering whether you settled for too little or paid too much.