ENFORCING FAMILY LAW CONTRACTS
Contract disputes are always difficult, but the stakes are even higher when those contracts cover family issues. At Averett Family Law, we’re here to help you understand the process of enforcing your family law agreements.
Which contracts are
family law contracts?
Family law contracts come with a variety of different names that can be confusing. You may hear terms like “separation agreement”, “property settlement”, “parenting agreement”, or “prenup”. These terms aren’t exact. Instead, they’re meant to describe the general subjects covered in the contract.
For example, parenting agreements generally cover issues of child custody and child support. Property settlements usually deal with the division of marital property. Separation agreements can cover any (or all) these issues at the end of a marriage. Prenuptial agreements usually do the same at the start.
It’s important to remember that a contract’s name is much less important than its terms.
Court enforcement
The court can only enforce valid contracts, sometimes called “binding contracts.” In every valid contract (family law or otherwise), the parties must:
- Offer and accept a specific set of terms;
- Understand and agree on what the terms mean at the time the contract is formed;
- Be physically and mentally able to enter into a contract; and
- Ensure that the goal and terms of the contract are not illegal or improper.
Additionally, most family law contracts must also be in writing and signed by all parties (sometimes before a notary).
Different family law contracts may have other requirements, so it’s important to consult a family law attorney.
How is a family law contract
actually enforced?
It depends. If you have a divorce order that references or includes your family law contract, then the contract is a binding court order. This is called “incorporating the agreement”. When one party breaches an incorporated agreement, the other party can enforce the contract by filing for contempt of court. The motion for contempt is filed in your existing divorce case. Incorporation makes the contract easier to enforce, but it also makes it easier for the court to change the terms of the contract.
If your contract was not incorporated into your divorce order, it’s treated like any other contract. When one party breaches an unincorporated agreement, the other party can enforce it by suing for breach of contract. The breach of contract lawsuit is a new case that must be served on the breaching party. The lawsuit can request that the other party abide by the contract (“specific performance”). It can also request that the innocent party be financially compensated for the harm caused by the breach (“monetary damages”). Filing a new lawsuit is costlier and more time consuming, but the risk that the court will change the terms of the contract is much lower.
In most cases you have three years from the time a contract is breached to sue—although sometimes that time period may be as long as 10 years.