In North Carolina, married couples who seek a divorce are required to live separate and apart for a full year before filing for divorce. This presents a slew of logistical problems as life keeps moving and there are many changes that happen during that year. A year is a very long time to live in a state of uncertainty.
With this in mind, many couples opt to enter into a separation agreement to bridge the gap between when they separate and when permanent orders are entered or even longer. A separation agreement is a legally binding instrument that may address issues such as property division, living arrangements, spousal support, debt, expenses, child custody, and child support. If parties can reach this agreement, it can be an incredible relief for everyone involved, as it creates predictability, structure, and stability.
Unfortunately, the existence of an agreement does not always mean that people will follow it. It is not uncommon to see a spouse fail to transfer property, fail to make spousal support or child support payments, fail to pay bills as agreed, or refuse to abide by the terms of custody or visitation. As a result, the aggrieved spouse is left wondering how to set things right.
How is a Separation Agreement Enforced?
A separation agreement is a contract between spouses. It is not a court order and does not have to be approved by a court. Therefore, if a party violates the agreement, they are in “breach” of contract. Generally, a contract will specify the procedures and remedy in the event of a breach or disagreement about the contract. This may include arbitration or mediation; however, the ultimate remedy is to file a lawsuit to seek enforcement of the terms of the contract. This may result in the court ordering the party in breach to perform the terms of the contract, to pay damages, or to pay sanctions such as the other party’s attorney’s fees for failure to comply.
In contrast, if the parties opt to present the agreement to the court for approval, and the court chooses to adopt the agreement as an order of the court, then the remedy is a little different. Instead of filing a new lawsuit to enforce a contract, the aggrieved spouse will instead file a motion to enforce the existing court order.
New Direction Family Law
A year is a long time to wait for a divorce. A separation agreement can help you achieve normalcy during that time. If you want help preserving your legal rights and attaining some stability during your separation, contact New Direction Family Law. We will help you create a legally enforceable post-separation agreement and hold your spouse accountable if there is a breach in that agreement. Call New Direction Family Law at (919) 719-3470 to schedule a consultation, or contact us through our website.
Sarah J. Hink
New Direction Family Law