The issues regarding your divorce (custody, support and asset distribution) can be resolved in one of two ways. The first being through an Order of the Court, whether consented to by the parties or terms a Judge has ordered after a trial has been held on the issues. The other being you and your spouse come to an agreement on outstanding issues and sign a Separation Agreement outlining those terms. This Agreement becomes a contract between you and your ex.
What happens when one party violates terms contained in the Agreement? It is a much different process than violating a Court Order. When one party violates a Court Order, they are in contempt. A motion can be filed with a hearing held soon thereafter. When a party does not follow through on terms contained in a Separation Agreement, a new lawsuit must be initiated. This lawsuit is called a Complaint for Specific Performance and asks the Court to enter an Order requiring the spouse to perform what is stated in the contract.
In North Carolina, when a Complaint for Specific Performance is filed, the parties will be required to attend mediation in attempt to resolve the issues before a trial is held. If mediation is unsuccessful, the matter will go to trial. The whole process could end up taking quite a long time. This time is precious, especially if it concerns money that is owed to you.
Although it can be a more complicated process to force your spouse to abide by terms in your Separation Agreement, there are benefits for resolving your divorce through this type of contract. Our office would love to speak with you to help you determine if a Separation Agreement or Consent Order is right for your case.