We do not want to file for a divorce but we would like to file a separation agreement. Will that be considered valid?

Full question:

My husband and I live in North Carolina. As we do not get along well, we have decided to live separately. However, we do not want to file for a divorce but we would like to file a separation agreement. Will that be considered valid?

• Category: Divorce
• Subcategory: Separation Agreements
• Date: 04/07/2025
• State: North Carolina

Answer:

A married couple may execute a separation agreement that is not against the public policy. It shall be thus be legal, valid and binding. The separation agreement must be in writing and acknowledged by both the parties before a certifying officer.

This is provided in North Carolina General Statute §52-10.1. It reads:
 

“Any married couple is hereby authorized to execute a separation agreement not inconsistent with public policy which shall be legal, valid, and binding in all respects; provided, that the separation agreement must be in writing and acknowledged by both parties before a certifying officer as defined in G.S. 52-10(b). Such certifying officer must not be a party to the contract. This section shall not apply to any judgment of the superior court or other State court of competent jurisdiction, which, by reason of its being consented to by a husband and wife, or their attorneys, may be construed to constitute a separation agreement between such husband and wife.”
 

Per North Carolina General Statute §52-10:

“***
(b) Such certifying officer shall be a notary public, or a justice, judge, magistrate, clerk, assistant clerk or deputy clerk of the General Court of Justice, or the equivalent or corresponding officers of the state, territory or foreign country where the acknowledgment is made. Such officer must not be a party to the contract.
***”