A separation agreement is simply a contract. It must be voluntarily entered into by two people who are of sound mind and at least 18 at the time of signing. If any of these three requirements are not met the contract may not be enforceable. As a contract, if one of the parties doesn’t live up to their end of the bargain the legal solution is an action for breach of contract. This is a lawsuit before the court. You will be asking the judge to enforce the agreement and you may receive relief in the form of monetary repayment (for financial matters not paid). You may receive relief in the form of specific performance, where the judge will order the other party to do as they promised. You may also be able to recover property wrongfully taken, stop property from being taken from you, or prevent an event from occurring. What you will not be able to do is file for contempt of court. You cannot file for contempt of court until there is an actual order in place. Once the judge makes an order regarding the breach of contract, if the other party does not do as the judge ordered, then you will have a contempt issue.
When most people think of contempt they think of a jail sentence. In fact, that is one of the powers of the court: imprisonment to force compliance with a court order. Imprisonment, however, is not the only remedy in a contempt action, the judge may also award attorney’s fees, impose a fine, order payments not made, revoke a professional license, and other remedies.
Can you turn a Separation Agreement into a court order? Yes, that is done by incorporating your Separation Agreement into your Divorce Order or Divorce Judgment. Incorporation occurs by asking for it on the face of your Divorce Complaint when you file for divorce and attaching a copy of your Separation Agreement to the Divorce Complaint. By doing this, it becomes a judicial order, subject to the contempt powers of the court.
If you decide not to enter into a separation agreement and decide instead to take your domestic matter to trial, the judge will make a ruling (generally from the bench). The judge’s ruling becomes the Order. Again, once there is an order in place you may then file for contempt if the other party does not do what the judge has ordered. You file for contempt by filing a Motion to Show Cause in North Carolina. You will not be able to file for breach of contract in this example as there is no separation agreement between the parties.
The main difference then between a separation agreement and a court order is that the court order can be enforced by the contempt powers of the court while the separation agreement standing alone cannot. While it is always better to amicably resolve domestic matters without involvement of the court, there are times when that is not possible. If you are able to negotiate a separation agreement and the other party is not doing what they promised, you will have to file a breach of contract action in court. If, however, you have incorporated your Separation Agreement into your Divorce Order or went directly to court for your domestic matters – such as Divorce, Child Custody, Child Support, Support and Alimony, and/or Equitable Distribution – and received a court order, you can file for contempt.
It is never wise to make decisions when under severe emotional distress. In addition, family law matters can be very complicated. Combining compromised decision making, due to your emotional state, and a complicated legal process can lead to poor decisions which may have negative implications for the rest of your life. Consulting with an attorney, even if just initially can help you determine, whether entering into a separation agreement or filing a lawsuit would be best for your particular set of circumstances.