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Articles Tagged with Separation Agreement

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By: Y. Michael Yin, JD

Rolls v. Rolls, 706 S.E.2d 842 (2010) (unpublished)

In North Carolina, Equitable Distribution can be settled without ever needing to step into the courthouse. Separation Agreements and Property Settlements are common ways to resolve the issues incident to a divorce. They are the will of the parties in a separation, distilled onto paper. They are contracts, and there are very precise rules for formation and enforcement of contracts. As we see below, a separation agreement may have been faulty, but it was the actions of a party that doomed his own arguments.

(a) Facts: Plaintiff wife and Defendant husband married in 1980 and separated in 2007. The parties filed a separation agreement in 2007, where they waived equitable distribution and acknowledged that both parties made full disclosure of all assets and debts. However, during the absolute divorce portion of their case, Defendant pled that there was in fact not a full disclosure of facts, and he requested equitable distribution in a counterclaim. In 2009, the trial court entered a Domestic Relations Order whereby half of Plaintiff’s IRA would be transferred to Defendant in accordance with the 2007 separation agreement. Plaintiff then filed a motion for summary judgment to dismiss the counterclaim, which was granted. Defendant appealed.

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Searcy v. Searcy, No. COA11-11 (N.C. Ct. App. 2011)

In North Carolina, settlement and distribution of marital property can be addressed in a separation agreement. Such an agreement is essentially a contract between the parties. A unique term, “fiduciary,” is sometimes used to describe a relationship between spouses that can be distilled to mean trust. As in contract law, there must be full and truthful disclosure of facts surrounding terms and provisions in a contract between parties who are fiduciaries to each other. Failing to disclose a certain fact can render the contract invalid. But in divorce proceedings, when does the fiduciary relationship end? In the case below, we see that there is no bright line. Continue reading →

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Mejia v. Mejia, No.COA19-438 (May 2020).

In North Carolina, we typically see two types of agreements in the realm of marriage and divorce. First is the Prenuptial Agreement; the second is the Separation Agreement. Separation agreements often contain provisions that resolve issues of child support, alimony, child custody, and distribution of marital property. At times, one party may be strong-armed into signing an agreement. In that case, the party may claim Duress. Below, we discuss a case in which a Husband claimed Duress to prevent enforcement of a Separation Agreement. Continue reading →

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By S. Dean Michaux, JD

When parties begin the process of divorce, many people feel that that they should include college expenses in a separation agreement. One or both spouses want to ensure that the college expenses for their minor children are covered when the children reach that milestone. But should you agree to cover college expenses in your separation agreement? Continue reading →

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Does the entry of a court-ordered equitable distribution create an interest to a retirement asset? Do you even need to file a DRO or QDRO when an equitable distribution consent order is signed by a judge? See how the North Carolina Court of Appeals saves the award of the marital portion of a retirement account that had not been disbursed before the intestate death of the former husband. Continue reading →