I have learned recently that my ex-wife has been routinely violating our Separation Agreement by allowing her boyfriend to sleep under the same roof while she has my kids which is specifically prohibited in the agreement. From what I understand he sleeps on the couch. Is it even worth my photographically documenting this and potentially going to court or mediation over it? Could I realistically expect to receive damages/attorney fees or is this basically unenforceable?
If your separation agreement is incorporated into your divorce judgement you can file a motion for contempt. However, if your separation agreement is not incorporated, and your spouse is not abiding by the terms of the agreement, you can sue for breach of contract. The following article will answer your questions about the enforceability of the agreement, including your questions concerning damages and attorneys fees:
Thank you. That was helpful information but I’m still left wondering how violations of this nature would be handled. Would the court be likely to monetize a violation of the overnight stay provision or just require her to comply going forward? There is not specific language in the (unincorporated) agreement regarding attorney fees, just that I have the right to sue for damages for a breach, seek other remedies or relief as may be available to me, etc. So it seems to me like even if damages were awarded they likely wouldn’t add up to what I spent in attorney fees assuming I can’t get those compensated.
As with other contracts, a court may not award attorneys’ fees unless they are specifically provided for in an agreement. If your separation agreement doesn’t provide for attorneys fees in the event of a breach, then you will not be entitled to them. If the only provisions that a party is not following pertain to child custody, you should file an action for custody rather than filing a breach of contract action.
So how seriously is a judge likely to take a violation like this where the breach was willful and repeated? Would I have a good chance of gaining something (ie. full or increased custody) as a result or would it be more likely be a specific performance suit where I gain nothing except forcing her to do what she should have been doing all along (at my considerable expense)?
You always have the ability to file for custody despite the fact that you agreed on custody in your separation agreement. The judge can look at your agreement in making his determination on custody, but he is not bound by the schedule you agreed to. Ultimately he will rule in the best interest of the child. Judges are given much discretion when it comes to custody and I cannot speak to how any individual judge would rule. That being said, there is a strong preference amongst family court judges in North Carolina for 50/50 custody. Based on the limited facts you have shared, it doesn’t appear that her having a boyfriend spend the night would be enough for a judge to award you full custody. If you do file for custody, you may be eligible for attorney’s fees. To learn more look at our article on obtaining attorneys fees in custody proceedings.