In North Carolina, the two most common ways to resolve family law issues are by signing a separation agreement or by getting a court order.
Separation agreements (with narrow exceptions) are private contracts between spouses who have decided to split up. As contracts, separation agreements essentially represent legally binding promises between the parties, entered into without oversight or involvement by the court. As a result, separation agreements are treated just like other, non-family related contracts.
Court orders, on the other hand, are direct judgments of the court which bind parties over whom the court already has jurisdiction.
These two methods have a great deal in common. They both set out terms that are binding on the parties. Both can cover either a single issue (like the division of marital property or spousal support), or resolve multiple issues in a single document. Each provides a framework for the parties to operate within in the post-separation world. They differ, however, in at least one critical way: what happens when one party breaches and doesn’t live up to the terms of the agreement.
Unlike a court order, the procedure for enforcing a separation agreement can depend on the individual circumstances of each case. It matters whether the agreement was incorporated into a later divorce judgment, and if so, when the breach occurred.
Incorporated vs. Unincorporated.
In determining how to enforce a separation agreement, the most critical question is whether the agreement was “incorporated” into the parties’ divorce judgment. Incorporated separation agreements are enforced differently than unincorporated agreements. In order for a separation agreement to be considered validly incorporated, all the following must be true:
- The separation agreement is signed and executed by the parties before the entry of the divorce order;
- The separation agreement is specifically referenced in the decree portion of the order with enough detail to identify it to a reader; and
- The separation agreement is either attached to the divorce order, or filed separately.
Enforcing Incorporated Agreements.
If the separation agreement has been validly incorporated into the divorce order, it is converted from a contract to a court order. If one party breaches the separation agreement after the date of incorporation, the non-breaching party can file a motion to hold the breaching party in contempt of court. The motion is filed in the divorce case file, and only requires the notice and fees associated with motions in existing cases (generally much less burdensome than filing a brand-new action). The court holds a hearing to determine whether the other party has breached the terms of the incorporated agreement, and if so, holds them in contempt of court until they remedy the breach. The timeframe for this process is usually a matter of months (as opposed to years), depending on the court schedule and urgency of the breach.
It is important to note that breaches that happen after the separation agreement is signed and executed, but before it is incorporated into the divorce judgment, are enforced like an unincorporated agreement.
Enforcing Unincorporated Agreements.
If the separation agreement was not incorporated into a divorce judgment, or if the breach occurred prior to incorporation, the separation agreement has to be enforced like any other contract. Once a party learns that the other has breached the separation agreement, he or she has to file a new lawsuit with the court alleging that:
- A contract between the parties existed; and
- The other party has breached one of his or her duties under the contract.
Filing a new lawsuit requires drafting a complaint, paying the filing fee (usually between $100.00 and $200.00), and formally serving the complaint and summons on the other party. Once the opposing party is served, they have one to two months to respond in writing, after which the case can be scheduled for hearing.
Trials for breach of contract tend to be more formal and time-consuming that contempt hearings, and are given less priority in scheduling. If the party is successful in their breach of contract claim, the judge will issue an order requiring the breaching party to pay money or perform some action as compensation for the breach. If the breaching party fails to follow the order, the other party would have to file for contempt or to enforce the judgment. The entire process can take anywhere from months to a year, or more.
A Note About Timeframes.
Courts expect a party to act in a reasonable time to address breaches of a separation agreement. In North Carolina, motions to enforce a judgment or order need to be brought within ten years of the order date, and actions for breach of contract have to be brought within three years of the breach. Missing these deadlines can result in losing the right to enforce your contract and get a remedy.
