I am Clarke Kent Wittstruck, an Asheville divorce and family law attorney handling cases in Buncombe and Henderson counties. I prepare large numbers of Separation & Domestic Agreements for clients all over the State of North Carolina. My process? You fill out my questionnaire and email it to me, we schedule an appointment, usually by phone, and we discuss the pros and cons of your particular needs and decide whether a Separation/Domestic Agreement is in your interest. Below is a link to prices I charge for Separation/Domestic Agreements and to my domestic questionnaire.
| Prices for Separation/Domestic Agreements |
| Domestic Questionnaire |
| Consultation Info |
What do you think the agreement will do for you? This is what I always ask first. The most common description I receive is clients believe a Separation/Domestic Agreement is a Court Order. It's not. It can later be incorporated into a legal action and made a Court Order, but just the agreement is simply a contract between the parties. A Sheriff will not enforce it if your spouse violates the terms of the agreement. Instead, you will have to file a court action to seek to enforce the agreement. And this takes time and money.
So what good is it? Here clients get confused because they sign contracts all the time and do not question whether the contract has meaning and power over their life. A contract is basically written evidence of an agreement between parties to "perform" - now and in the future. If you will do this, I will do that and I will not do something else. You promise, I rely upon your promise and I perform an action and you do the same. And the same is true for a Separation/Domestic Agreement - it is a promise each party makes to the other to "perform" in the future. And if you fail to do so there can be penalties. And if you must go to court in the future your Separation/Domestic Agreement is, generally, conclusive evidence of your promise. Then a court will enforce the agreement and award the penalties outlined in the agreement.
Anything else? Separation/Domestic Agreements serve a number of functions. They clarify terms which the parties may have differing perspectives on. They outline promises of what performance is expected in future; the division of marital properties; and whether, for what duration and in what amount one party will support the other. They tell your realtor how to proceed in selling the house; they tell your bank you are not responsible for your spouse's future debts; they tell your employer how to divide your retirement accounts; and - and this is often the most important - they tell your spouse you are really serious this time, the marriage is over and decisions must be made about your new future business relationship. I do not say "business relationship" lightly because, especially if you have children together, you will probably have some type of continuing relationship in the future - from child sharing to running a joint business to selling the house. Memories grow hazy; written promises are better. And the sooner you start viewing your spouse as a business partner with independent interests and less like an emotional storm pulling you underwater, the better things will be for everyone.
How does the Court enforce the agreement? Generally three ways: by the use of its contempt power to force one party to do what they have promised to do or face jail time; or, by an order for "specific performance" if the issue is to, say, force the sale of a house you have previously agreed to; or, by a judgment of money damages for breach of contract. The remedy you want may vary. But the first remedy - contempt - is only available IF a court has previously adopted and incorporated the agreement into a Court Order.
So why not just do a Court Order now? Good question. Most of the time the reason is because it is unnecessary - most people will do what they promise to do. I tell people almost daily that Separation Agreements are for people who do not need them; Court Orders are for people who do not, ultimately, trust the other to do what they promise. But just as often people do not want to spend the extra money to go ahead and obtain a Court Order, even if it is by consent and ultimately just an adoption of the agreement. This is usually short sighted. It is much easier to obtain a Court Order while each party is in a "signing mood" and if you do this at the beginning you can save yourself potentially thousands of dollars in legal fees later, not to mention a chance to relax in knowing you have the Court's contempt power backing you up if your spouse fails to abide by the agreement.
So do I need a Separation/Domestic Agreement? That's something you will have to decide - you know your spouse the best. A separation agreement is not required by any Court. One method to evaluate your situation is this: is the agreement long term or short term? If you have an agreement with long term promises I always recommend a Court Order instead. Or you can do both - you can include in the Separation/Domestic Agreement a provision to incorporate the agreement at a later date. Most couples incorporate their agreements into a Court Order when they ultimately divorce. Can you wait this long? Will you need the power of a Court Order before you are eligible for an actual divorce? Many things can happen during the time gap between separation and divorce. You will need to decide how vulnerable you are if your spouse fails to keep his/her promise during this time.