Separation Agreements are private contracts between spouses which can resolve issues of Equitable Distribution, Alimony/Post Separation Support, Child Custody and Child Support. Separation Agreements are voluntary, so someone cannot be forced to sign one. However, for parties that are willing to negotiate and can successfully enter a Separation Agreement, it can be a very effective way of resolving issues and avoiding litigation. No two Separation Agreements are exactly the same, since each document is prepared based on the circumstances of each individual case, giving parties an opportunity to tailor their settlement in ways which may not be guaranteed should the matter proceed to litigation.
While entering a Separation Agreement can be a great way to resolve a separation amicably and with as much control over the case as possible, sometimes issues arise as to enforcement of the provisions contained with the Separation Agreement. Should a dispute arise as to the enforcement of a Separation Agreement, the remedies will depend on the answer to the following question: is the Separation Agreement incorporated into a judgment?
A Separation Agreement which is unincorporated does not become part of the final divorce judgment. North Carolina Appellate Courts recognize that an unincorporated Separation Agreement remains a private contract between two parties and thus must be construed under traditional principles of contract law. A common remedy for enforcement of an unincorporated Separation Agreement is called specific performance, which compels a person to perform the obligations to which they are in breach.
On the other hand, a Separation Agreement that is incorporated into a judgment of Absolute Divorce means that the Separation Agreement has become a part of the court’s judgment, not a private contract between two parties, and is enforceable by contempt powers of the court. Contempt powers include the ability to award attorney fees and/or incarcerate the offending party.
There are many different options when it comes to the specific provisions contained in a Separation Agreement. Drafting and/or enforcing Separation Agreement should be discussed with an attorney who has had an opportunity to fully assess the facts and circumstances related to your case.
The information provided is intended to be very basic in nature and not to be relied upon. All circumstances are unique. The family law attorneys at Vernon Law Firm are happy to set up a consultation to discuss specific details and circumstances surrounding Separation Agreements and all family law matters.