This course follows along with a sample separation agreement which can be downloaded here.
In paragraph 16 and 17 we are looking at the waivers that we need in place for this to be a binding property settlement. So what do I mean by that? Well, in paragraph 16, we’re actually waiving the right to file in court for what is referred to as equitable distribution. So that means that we’ve agreed in this document how we’re dividing property and we don’t need the court to divide property for us. So this property settlement would be a final binding settlement. The court will not later address it or modify it or approve it anyway, it will be binding at the time that it’s signed.
So, you’ll see reference to GS section 50-20 and that is the statute number in North Carolina for a property division and so we’re making it clear that both parties are satisfied with their property division that they have, and if either tries to undo this property division, then they can use this paragraph here as a defense to say, “Well, sorry, we’ve already divided our property”.
It’s very important that anytime there is a property settlement, that we have this acknowledgement that this is actually a final settlement of the property division. So that means that if you receive a house or retirement plan, anything that you’ve received in this document, you need to recognize that it will be final resolution of your property division.
Next in paragraph 17, we’re making it clear to people in the future that you and your spouse are going to be free to buy and sell property without the signature of the other. So you will be able to purchase real estate, to transfer real estate, and you will not need the permission or not have any claim of your spouse on that as well.
Paragraph 18 makes it clear that if either party is called upon to execute a deed, or any kind of conveyance, a bill of sale, that they will perfect that title in the future if they are required to do so. So, 17 and 18 are the critical things that we need in place to make sure it’s clear that each of you is now from here on forward able to buy and sell real estate without the other’s signature and that you’re not going to have a claim to one another’s property.
Paragraph 19, so you’ll see waiver’s of claim against estate. This is also very common for us to do in a separation agreement. It’s not 100% required, but is very common for us to do. Because what we’re saying here is that the statutory rights of each of you has as a result of being married, you’re waiving those claims. And the idea is that you would not want to keep those claims in place because you’ve already divided your property. So you’ve divided your property 50/50, you don’t need the person to now also, in addition to that, have any kinds of inheritance rights to the property. So as a result of being married, both of you have certain rights. You can take a life estate in your real estate, there can be a year’s allowance at the time of death, and you can have the right to administer the estate of your spouse, those are all rights by statute, and you’re agreeing in this paragraph 19 that you’re waiving those rights so that each of you can be free and clear as if you were already single.
We have here in paragraph 20 a blanket waiver of any lawsuits that either of you may have against each other except for the lawsuit for divorce. So that could include personal injury claims either of you might have against each other, or it could include any other claims for fraud, or for any lawsuit that either of you have against one another, you are waiving those rights, and that is something we would like to see at the end of a separation agreement because this is going to be a final settlement of your financial rights, so we want you to waive any and all claims that you have against one another.
