Two of the questions I regularly hear are "how are separation agreements enforced?" and "what is the difference is between a separation agreement and court order?" (or more specifically, a separation agreement that is incorporated into a the court order for divorce).
First, a separation agreement (sometimes called a “separation agreement and property settlement” or “parenting agreement” if it deals only with custody) is simply a contract between two parties, signed and notarized. A separation agreement should resolve every legal issue related to the parties’ separation such as custody arrangements, property distribution, and child and spousal support. The moment that the separation agreement is signed in front of a notary public, it becomes a binding contract. This is true even if the parties are not eligible to file for divorce because they have not yet been separated for one year, as required by North Carolina law.
A court order is just that - an order of the court signed by a judge. Remember, divorce is just a legal status change from married to single that does not address the other issues involved in your separation. That said, the divorce order can “incorporate” the terms of a your separation agreement. This transforms the separation agreement into a court order.
People sometimes think a court order is better or stronger than a separation agreement. They really aren’t, although as you will see, the differences between them may make one more appropriate than the other depending on the circumstances. They are both legally binding and enforceable. However, a separation agreement and a court order are different in two important ways: 1) how they can be enforced and 2) how they can be modified. There is also a possible difference in privacy. These differences will make one or the other a better choice for a particular case, so it is important to understand them and discuss the pros and cons of each with your attorney.
Enforcement: Separation agreements are enforceable as contracts, so if one party breaches the contract you may sue them accordingly. Court orders are enforceable by the court’s contempt powers. Not to be confused with criminal contempt, the purpose of civil contempt is not to punish. Civil contempt uses the court’s power to impose fines or imprisonment as a means to compel a party to comply with a court order.
Modification: The terms of a separation agreement can be changed by the parties themselves, usually just by writing and signing a new notarized addendum to the agreement. Also, a well-drafted separation agreement will contain a provision that sets out the process for modifying the agreement. A court order, on the other hand, can only be changed by a judge. For example, changing the terms of a custody order in North Carolina requires proof that a material change in circumstances has occurred since the order was entered, and that the proposed modification to the custody order is in the best interests of the children.
Privacy: One final difference that can be important is that a court order is a matter of public record. That means that an incorporated separation agreement that is actually attached to the order and placed into the court file, as required by some jurisdictions, also becomes a matter of public record. A separation agreement can be kept private.
It is very important that you understand these differences as they relate to your particular case. There is no single right answer; there are advantages and disadvantages to both. This is intended only to provide general information and is not legal advice. If you have questions about separation agreements or court orders, you should discuss them with an experienced attorney in your area.
As always, thank you. I hope you have found this helpful. Remember too, if you have a question that you would like to see addressed in a future blog entry, leave it in the Comments section below or complete the contact form on this site. If you want to know more, please feel free to browse this site, call my office, or simply fill out the contact form on this website to learn more or schedule a consultation today.