Unlike in some states, in North Carolina separation agreements are enforceable without a judge’s signature. This is good news for couples who want to resolve their case without the expenses or animosity that come with a complex legal battle. The way you go about enforcing a separation agreement depends on whether or not your agreement was incorporated into your divorce decree and became an order of the court.
Incorporated Separation Agreement:
If a separation agreement was incorporated into a divorce, then it becomes a formal order of the court. That means that the court has the ability to enforce it like any other order signed by a judge. An injured party would file a motion for contempt and ask the court to enforce the separation agreement, and in some cases punish the offending party. The court has broad powers in deciding how to handle these violations. They have the authority to fine someone, order property sold or transferred, or even jail someone for non-compliance. In some cases attorney’s fees are awarded for failure to comply with a court order.
Unincorporated Separation Agreement:
If a separation agreement isn’t incorporated into a divorce, then the appropriate remedy is a breach of contract claim. Your attorney would file a formal complaint for breach of contract and can ask the court for a variety of remedies. Depending on what you are asking the court for will determine how long or complex your case will be. It could be as simple as resolving in a few months through a motion for summary judgement, or as complex as having an entire jury trial. The court in these cases has more limited authority than in an incorporated agreement. They can enforce the agreement by transferring whatever property or money that was supposed to be transferred in the first place. They can also award monetary damages if the moving party can show how the other party’s failure to comply with the agreement has resulted in monetary damages. Attorney’s fees can be awarded in these cases only if the separation explicitly allows for them.
As you can see from the two different avenues of enforcement of separation agreements listed above, there are pros and cons on whether to incorporate a separation agreement into the divorce decree. Those decisions should be discussed with a lawyer and carefully considered on a case by case basis.