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Is a separation agreement enforceable?28 Dec 2016

If you have encountered marital problems, you and your spouse may have reached a juncture at which you are considering a separation. You may not want to divorce, for one reason or another. Fore example, you may feel you should not divorce for religious reasons. Whatever the underlying situation, you may have concluded that separating is advisable at this juncture in time as opposed to pursuing a divorce case.

As part of the process of considering a separation, you may be thinking both of a more informal arrangement or of obtaining a legal separation via a court proceeding. As you weigh and balance your options, you may have questions about whether a separation agreement is legally enforceable.

At the outset, you need to understand that there are two types of separation agreements. First, there is a separation agreement reached between spouses more informally. Although an agreement of this nature needs to be committed to writing, it is not part of a court proceeding.

Second, there is a separation agreement that is an outgrowth of a court proceeding. Different procedures are necessary to obtain judicial enforcement of these two different types of separation agreements.

Separation Agreement Between Spouses

Provided it has been properly prepared and executed by the spouses, a separation agreement between spouses not a part of a legal separation court proceeding is nonetheless a binding contract. In other words, assuming the agreement was properly drafted and signed, if it is breached, a spouse can file a case in court seeking enforcement or damages due to the breach of the agreement. This would be like virtually any other contract dispute that ends up in court.

Separation Agreement in Legal Separation Court Proceeding

If a separation agreement is reached between spouses as part of a legal separation proceeding, there is not need for a spouse to file a court case to seek enforcement of the contract. Rather, a spouse who believes the other party has breached the terms of a separation agreement need only file what is called a motion to enforce in the legal separation case.

When a separation agreement is made during a legal separation court proceeding, the court itself ultimately adopts that contract as part of the court order or decree in the case. Thus, if a party to the separation agreement breaches it, that individual is not just violating the terms of a contract, but is violating a court order as well.

Individual State Laws Governing Contracts and Legal Separation

The laws in each state govern contracts generally and legal separation agreements specifically. In addition, you need to appreciate that not every state in the country has a special legal separation proceeding. In those states, if a couple wishes to separate, they must do so more informally and without access to a special court process.

Take a Proactive Approach

You need to take a proactive approach to protecting your rights an interests when you determine that the terms of a separation agreement have been violated or breached. Indeed, even if an initial breach might seem somewhat minor, keep in mind that you can end up on a slippery slope with your spouse. You do not want to end up in a situation where your spouse is pushing the envelope time and again via ever mounting violations of the terms and conditions of a separation agreement.

Retain a Legal Separation Lawyer

If you are thinking about separating from your spouse, you are well-advised to consult at attorney. A legal separation lawyer can provide you information about what your options are in your jurisdiction. As a general rule, a lawyer does not charge a fee for an initial consultation.

If you already have a separation agreement in place, of one type of another, you need to consider seeking legal assistance if you believe it has been breached. A skilled, experienced legal separation attorney can advise you on what steps you can and should take to protect your legal interests when this type of agreement has been breached.

As an aside, if you are contemplating separation, retaining counsel at the outset is a wise course. With a well-drafted separation agreement, you can avoid a good many problems in the future.

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