Alternatives to Litigation

A separation agreement is a contract between a husband and a wife resolving issues such as division of property (including pensions and retirement accounts) and debts, custody, and support (alimony and child support) once they have separated. The agreement can also determine how parties will file taxes for certain years and who will claim the tax exemption on the children (normally the parent with physical custody more than half of the year gets the exemption absent a written agreement stating otherwise). A separation agreement can only be entered into voluntarily; no one can be “forced” to sign or to agree to terms they are unwilling to agree upon. Separation agreements are not required to get a divorce.

Some benefits of separation agreements: Written separation agreements may be enforced by a court (through a breach of contract action, for example), whereas oral promises between spouses are unenforceable. Separation agreements usually eliminate the need to litigate marital dissolution issues, resulting in savings of time, money, and stress.

Some disadvantages of separation agreements: A separation agreement cannot bind third parties (such as finance companies or banks), and your creditors will still expect payment from joint debtors regardless of any agreement between them. If, however, a spouse agrees to assume a debt in a separation agreement and then later defaults on that debt, the beneficiary of the promise can sue the spouse for breach of contract and possibly receive the amount of money lost. In some cases, courts will order specific performance of a promise to make debt payments. Courts are not bound by the terms relating to child support, custody and visitation and can modify the agreement terms based on the best interests of the children. There is a presumption, however that the terms in the agreement are fair and appropriate for the children’s best interests.

A separation agreement should be prepared by an attorney, and the agreement is not valid unless signed by both parties and notarized.

If you and your spouse are unable to agree on any or all terms of your separation, mediation is one alternative to litigation. Mediation is where a third party helps you both discuss the terms of your separation. In NC, the mediator may be a licensed attorney or certified mediator. NC Courts require mediation for custody and property disputes before the judge will hear your case. With this in mind, why not try private mediation before resorting to the need for court intervention? When you participate in mediation, you, your spouse, or both can agree to keep attorneys out of the process. Note that the mediator cannot provide either of you with legal advice so it really depends on your comfort level if you decide to attend unrepresented. At the Olsinski Law Firm, our family law attorneys are advocates for mediation and have over 15 years combined experience with representing clients in mediations.

Collaborative divorce is a recent development in NC, growing from California roots and quickly making waves in the legal community. This is a separation and divorce process wherein all parties commit to settlement out of court. This means all parties, attorneys included, agree upfront to refuse to litigate. Your case never sees a courtroom and, as such, you and your spouse maintain complete authority and make all final decisions for your family, rather than a stranger (i.e. judge). If you and your spouse are unable to reach an agreement, or wish to have more guidance, the collaborative process is worth looking into. It does take an “open” attitude for this process to be effective and both spouses must be willing to do whatever it takes to ensure an amicable outcome.

True collaborative attorneys are specifically trained in collaborative techniques and resources and will note this on their website. CAUTION: some attorneys will say they’re “collaborative,” but this does not mean they actually subscribe or commit to the collaborative process. See the Charlotte Collaborative Divorce Professional website for further information and attorney referrals: charlottecollaborativedivorce.com