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22 Aug 16

Is a separation agreement enforceable?

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A separation agreement is created between a married couple in two different types of situations. First, there are instances in which a married couple believe they cannot live together, at least at the present time. They do not want to terminate the marriage. Rather, the draft a separation agreement which sets forth the rights and responsibilities of each spouse.

Second, there are situations in which a married couple cannot live together as man and wife and pursue a judicial legal separation. As is the case with the more informal separation process, the couple does not desire to terminate the marriage for one reason or another.

The possibility exists that a party to a separation agreement may end up not abiding by its terms. The question becomes whether a separation agreement can be enforced. The answer in either scenario is yes.

A Separation Agreement is a Binding Contract

In the case of an informal separation of spouses in which they draft and sign and agreement, the couple creates a binding contract. As is the case with any legitimate type of contract, if a party does not honor its terms, the other individual can file a case in court to seek enforcement of the agreement.

The court can issue an order directing the party not in compliance with the separation agreement to follow its terms and conditions. In addition, the court may order the party in breach to pay monetary damages to the other individual.

There exists one caveat to seeking judicial enforcement. The separation agreement between the parties must meet the requirements of a contract before it can be enforced. This underscores the need to get professional legal assistance in the drafting of a separation agreement.

Agreement in a Legal Separation Case

If a couple has filed a legal separation case, the agreement reached in those proceedings is also enforceable. Rather than file a contract enforcement case, the injured spouse files a motion with the court in the legal separation case .The motion explains the breach of the agreement and requests that the court issue an order enforcing the contract.

Depending on the circumstances, the court in a legal separation can may also direct the spouse in breach of the agreement to pay monetary damages. In addition, because the separation agreement in this type of case previously would have been made part of an order of the court, the spouse in breach could be held in contempt of court, if a judge were so inclined to take that step.

In either scenario, retaining legal counsel to obtain enforcement of a separation agreement typically is a wise course. An experienced family law lawyer understands relevant law and how the court system works in regard to enforcement of an agreement or prior court order.

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