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Separation agreements are contracts – which state the terms under which the two spouses will live apart. A separation agreement can cover all forms of things, like marital asset division, child custody, and many other items. The agreement can govern ALL the elements that a divorce agreement would cover – without it being considered an actual divorce. It can resolve all the issues that would be normally decided by a judge. The only thing it can’t do is grant a divorce.
In most states, the two parties can agree to the separation agreement whatever/however they wish. They are not required to get permission from a judge – in order to validate their agreement. Negotiating a separation agreement means things are less adversarial. In addition, because it is a formal agreement – signed by both parties, it’s a legally binding document. As a result, it’s something which CAN be enforced. For example, if either party is in breach – a lawsuit can be filed to resolve the issues and try to find an amicable resolution. It is a legally binding document – and many people forget this.
Any document where you agree to certain terms – can be enforced by either party. You don’t need an attorney to negotiate, or draft the agreement – but it can certainly help. In order to enforce it, you’ll probably need to hire an attorney who draft the necessary lawsuit papers and get the agreement brought to a judge.
If you are having issues with your spouse abiding by the terms of the agreement – its a good idea to try to handle it like rational human beings. If the spouse won’t cooperate, then you should hire an attorney who can help you enforce the agreement.
If one party has breached the contract, then the other party can sue for whatever damages are relevant. For example, if your spouse was going to pay you spousal support – and didn’t do it, then you can sue for that and also ask for legal expenses to be covered as well. The court can even force the spouse’s property to be sold to pay for the damages.
If either party breaches, the plaintiff can sue for “specific performance,” which is a court order to force the breaching party to do what the separation agreement requires them to do.
In summary, if you’re spouse is breaking the terms of the agreement – you can hire a NYC divorce lawyer and force him/her to abide by the terms.
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.