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Ellen, Lawyer
Category: Family Law
Satisfied Customers: 36714
Experience:  25 years of experience helping people like you.
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My wife and I made a separation and property settlement agreement

Customer Question

My wife and I made a separation and property settlement agreement without an attorney on Dec 31,2001 notarized it and registered it in Charlotte,NC. For one reason and another we continued to live together till now and now there is a falling out and my wife is threatening that that agreement and property settlement is not valid any more. I paid her a large sum of money at the time of signing as per the agreemnt but though the agreemnt says she will sign the deeds and do all the paper work to sign the houses to me I never got it done. My question is is it valid or not and can I enforce it. It has all the right clauses that reconciliation will not void the agreement etc. There is a compliance clause also. Is there case law in NC to say that the agreement is valid once notarized ? Main question is taht since we cohabitated together does it make the agreement invalid ? In my opinion because of the reconciliation clause which recognizes that a reconciliation may occur and the agreement will remain valid it should be valid. I need to definitively so I may ask the courts to enforce it. Thanks
Submitted: 7 years ago.
Category: Family Law
Expert:  Tina replied 7 years ago.
So you filed the separation agreement with the family court? Did the court enter a final order of divorce? Did the court enter an order regarding the division of property?
Customer: replied 7 years ago.
No, no family court involved. We drafted and signed a Separation and Property Settlement agreement and notarized in Charlotte, NC and I subsequently registered it with the Registrar.
Expert:  Tina replied 7 years ago.
I see. If there was no court action taken, then registering the agreement with the registrar does not make it a legally enforceable agreement.

However, since the family courts are courts of equity (fairness), you can use the agreement and fact that you paid her a "settlement" to offset any amount she claims during divorce proceedings. So, it would still be taken into account by the court.

Best regards XXXXX XXXXX



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Customer: replied 7 years ago.
Relist: I do not think Tina knows what she is talking about. As far as I know it is an enforceable contract. Her reasoning is totally flawed..
I do not think Tina knows what she is talking about. As far as I know it is an enforceable contract. Her reasoning is totally flawed.
Expert:  Tina replied 7 years ago.
Well, I could be quite offended by that comment, but humor me please. On what basis are you challenging my answer?
Customer: replied 7 years ago.
Various researches on the Internet that a notarized separation agreement is a contract enforceable. Only question really is that we never really separated in fact. However there is a clause in the agreement that says that reconciliation will not void the agreement. I read on the Internet in a decision in S Carolina that this was upheld. So I am lookinf for actual case law.
Expert:  Tina replied 7 years ago.
It's certainly possible that there is a recent ruling that is inconsistent with my answer, but I'm 99.99% sure that I'm correct since without court action, there is no basis for enforcing the contract. You can call it an enforceable agreement, but without having a court order, there is no basis for actually enforcing it. Since family courts act in equity (fairness), not contract, they have the power to invalidate it so it is strong evidence as I stated above, but it is not an enforceable agreement as you might think between two parties agreeing to something in an arms length transaction.

If you would like to share the information you saw on the internet, I would be happy to review it and tell you if I am wrong.

Customer: replied 7 years ago.
Then you totally misunderstood my question. I am only asking if the agreement is valid. In other words if I take it to court will they find it valid. You are missing the point. I am asking that since we did not physically separate will the court still hold the agreement valid. I am saying yes, because the agreement says that it will survive reconciliation and I am looking for a definitive case law of similar case.
Expert:  Ellen replied 7 years ago.
I have reviewed the answer supplied by the expert you were working with. The answers are complete and correct.