A valid written separation agreement is a contract. How a separation agreement is enforced depends on whether or not it has been merged into a court order.
If a separation agreement is merged into an order or judgment of the court, then the effect is that the court has accepted and adopted the separation agreement as part of its order and, upon proper application made to the court, the court may enforce the agreement by a finding of contempt. Moreover, a separation agreement that is incorporated into a court order gives the court authority to modify certain provisions of the order. However, child support and child custody are always subject to modification by a court with jurisdiction, notwithstanding whether an agreement is incorporated into a court order.
A separation agreement which is not merged into a court order is generally only enforceable by contract remedies. Therefore, a party seeking to enforce the agreement must file a lawsuit for breach of contract before a court has authority to require a party to comply with the provisions of a separation agreement, or to penalize a party for failing to comply.
Most separation agreements contain provisions about the remedies available in the event of a breach of the agreement by either party. Some agreements may require the parties to participate in mediation or arbitration in lieu of or prior to initiating a legal action to enforce compliance with the agreement.
Breach of the separation agreement by one party does not necessarily release the nonbreaching party from performance. The provisions of the agreement, such as whether the terms are integrated and given for reciprocal consideration, may determine whether the nonbreaching party is obligated to continue compliance.
Unfortunately, there is no easy way to force someone to comply with the terms of a separation agreement. The family law attorneys at Gum, Hillier, and McCroskey, P.A. have extensive experience in preparing, challenging, defending and seeking enforcement of separation agreements. If you have questions or concerns regarding the validity, enforcement, or compliance with a separation agreement, we can review your agreement and advise you of the options available to you. Please contact our office at 828-258-3368 for more information.
This article is for information purposes only and is not to be considered or substituted as legal advice. The information in this article is based on North Carolina state laws in effect at the time of posting.