Separation and Property Settlement Agreements,
Consent Orders and Pre-marital Agreements

Types of Agreements

When most people think about agreements in family law, they think of pre-marital agreements.  While pre-marital agreements are a common type of agreement in family law, what is much more common in Asheville, Hendersonville and the rest of North Carolina are Separation and Property Settlement Agreements (SAPS).  Other agreements to resolve issues between separating parties can also take the form of Consent Orders if a case has already been filed.  Below is some helpful information about the most common type of agreements our experienced attorneys use in family law cases in Asheville, Hendersonville and nearly all of Western North Carolina.

Separation Agreements and Property Settlement Agreements (SAPS)

A Separation and Property Settlement Agreement is used in the vast majority of separations to divide property, establish financial rights and responsibilities, and resolve all of the other financial and logistical (and even child) issues between parties during the separation process.  A SAPS is a legally binding contract by which you resolve all of the issues related to the end of the marriage.  While a SAPS is binding and fully enforceable if drafted and executed correctly, provisions in such agreements about child custody and child support are subject to different forms of judicial review and modification, no matter what the agreement says.  While such provisions might be able to be modified by a court, never enter an agreement with the idea that you will just have a court modify it later.  Modification of an agreement for child support, for example, can be extremely complex and limited, and parties should be very careful when addressing such issues in agreements as the court will allow and potentially enforce child support provisions the greatly exceed the child support guidelines that would have been ordered had the issue been litigated in court.

Separation and Property Settlement Agreement offer an advantage to separation parties who can work cooperatively as such agreements can be drafted and signed while the parties are still living together, so long as a physical separation of the parties is “imminent”.  This allows parties to reach an agreement before physically separating, which can be advantageous in many situations.  Separation and Property Settlement Agreement offer parties the ability to control the process and not leave any decisions to a stranger, even if that stranger is a judge.  A court has a much more limited range in terms of what it can require the parties to do.  For example, the parties in an agreement may agree to list the house for sale in 6 months and split the proceeds, and include a number of provisions about how that process will happen.  A court can’t necessarily do the same thing.  Absent an agreement in court, the court must award the house to one part or the other at a set value, which makes the process more complicated and less adaptable to the specifics of an individual case.

Another advantage of Separation and Property Settlement Agreement is that they are almost always less expensive than litigation.  If privacy is important to one of both of the parties, then a SAPS is clearly a preferred method to resolve your case.  Unlike consent orders or other orders obtained in litigation, which fall into the public domain, Separation and Property Settlement Agreement can generally be kept completely private.  While there may be reasons to make parts of an agreement public, they are generally not required to be filed in any public forum, such as on the court’s docket or the register of deeds.  Many separating couples prefer to keep the details of the separation private from friends, family and the general public.  With the expansion of e-courts and public records, this is becoming more and more important to our clients.

For those seeking flexibility, efficiency, privacy and cost savings, Separation and Property Settlement Agreements are clearly a preferred method of resolving a family law case.  In cases where an agreement can’t be negotiated or the parties need the benefits inherent in a court order, such as easy enforceability (such as invoking the court’s contempt powers), a consent order offers some of the flexibility of a Separation and Property Settlement Agreement with some additional enforcement options, but virtually no privacy.  For those who simply cannot agree, an order resulting from litigation may be the only option.

Consent Orders

Once a case has been filed and the parties are in litigation, the parties can agree to nearly any issue or issues and ask the Court to enter a Consent Order.  A Consent Order is an order of the court that is reached not by a hearing, but by an agreement of the parties.  Consent Order can cover any subject over which the court has jurisdiction, and can be full or partial, temporary or permanent.  All that is required is that the order be written, and that the parties willingly agree to the entry of the order at the time it is entered.

The court has the authority to reject a proposed Consent Order, even if the parties agree as to all issues, especially if the proposed Consent Order involved a minor child.  However, a court refusing to enter a proposed Consent Order is extremely rare, especially if the proposed Consent Order is drafted by an experienced family law attorney.  In most cases, the Court will enter a Consent Order containing provisions that the court might never otherwise enter, so long as both of the parties agree.  This is based on the public policy that the State of North Carolina should not interfere with the parent’s rights to make such decisions, absent extraordinary circumstances.

Once a Consent Order is entered, it is an order of the court, enforceable as any other order.  The Consent Order is filed in the docket, which makes it a public record, subject to being viewed by the general public or any curious parties.  If the Consent Order deals with a particularly sensitive issue involving minor children, the court may have the authority to seal the order, making it unavailable to the general public.  Such sealings are rare, but do occur in certain situations.

A Consent Order can be negotiated in the same manner as a Separation and Property Settlement Agreements and can have similar language to those agreements.  A Consent Order will have to contain additional findings about the court’s jurisdiction and the basis for the Consent Order and often contain findings about the fact that each party is freely agreeing to the Consent Order.  There is are some issues the parties cannot consent to (or their consent is not binding), such as to whether the court has subject matter jurisdiction (this cannot be agreed to if it does not otherwise exist), whether something in the future will be a substantial change in circumstances related to a minor child (an important issue in modifications), and to permanently waive child support (such waivers are not binding).

Premarital Agreements

Premarital agreements or prenuptial agreements, are contracts that dictate the financial terms of a future separation and divorce. Without a premarital agreement, the division of property and other related matters will be left up to the courts if the parties cannot agree.  Premarital agreements are governed by Chapter 52b of the North Carolina General Statutes.  So long as the pre-marital agreement was incompliance with the statute and entered into without fraud, coercion or duress, they are enforceable.  Much as with Separation and Property Settlement Agreements, any provisions regarding children or child support are subject to review by a court regardless of what the agreement says.

Premarital agreements are highly customizable and can be written to accommodate a party’s specific circumstances. The agreement can distribute property and assets to a person, waive alimony and spousal support, and dictate how all financial matters are resolved. Without a premarital agreement, all of these decisions could be in the hands of a judge if the parties cannot agree. Premarital agreements allow couples and families to make their own decisions about their future.

Our family attorneys collaborate with our clients to create agreements that best protect their interests. Our experienced family law attorneys work to facilitate a premarital agreement that all parties can accept. While both parties can use the same lawyer to obtain an agreement, many couples choose to use separate legal counsel if it is necessary to negotiate the terms, as the attorney can only represent one party.

Pitalls of DIY Agreements and Orders

It is reasonable to ask- “why do we need an attorney if we agree on everything or almost everything?”  Or, a person may feel that they know what they want in an agreement or order and they can save some money and negotiate with the other person directly to reach an agreement.  Finally, parties may seek the help of a certified family mediator to assist them with obtaining an agreement.  In all of these cases, it is still extremely important to have the assistance of an experienced family law attorney.  In our experience, here are some of the most common pitfalls in all of these situations:

1. Often parties think they agree on everything, but find out in the process that they actually have major disagreements about various issues.
2. Even if everyone agrees on everything, there are various issues that may not be apparent or may not be addressed in the agreement, such as who will claim children for taxes or failing to including contingencies for unexpected events.
3. Failing to consider tax impacts related to selling a house or cashing out all or part of a retirement account.
4. Not having your agreement properly executed or having trouble getting your consent order entered by a court.
5. Accidently or intentionally omitting assets or liabilities from the agreement or consent order.
6. Failing to properly identifying and classifying various types of assets or liabilities in an agreement or consent order.

Having an experienced family law attorney helps ensure that all issues have been addressed and nothing left to chance.  Our attorneys help clients in Asheville, Hendersonville and all of Western North Carolina reach agreements that help resolve their cases.  We make sure that all relevant issues are considered and addressed and that your agreement is complete.  It is always easier to address these issues at the outset as opposed to trying to fix an issue that is discovered after an agreement is signed or order has been entered.  Sometimes correcting such an error, which can be extremely costly, cannot be accomplished once an agreement is signed or an order is entered.

How Our Family Law Attorneys Can Help

At Blue Ridge Family Law Group, we aim to serve our clients efficiently and effectively. Negotiating agreements in difficult situations can be  a daunting task, but our goal is to accomplish them smoothly, efficient and timely manner. Our family law lawyers are experienced and understand the best approaches to complex family law issues. We routinely handle cases in Asheville, Hendersonville and nearly all of Western North Carolina.  To learn more and get started completing an appropriate agreement or consent order, contact our family law firm in today.