Court order vs Separation Agreement


#1

I know that court orders supercede custody in general, however, I have a question about specifics. If a subsection under custody is in the separation agreement (and the separation agreement contains a severability clause), is that subsection null and void if it isn’t directly addressed by the court order, but all other surrounding subsections are?

(Thanks for all your help.)


#2

It sounds like your Separation Agreement was incorporated into the Order granting divorce. If that is the case, then it would be very unusual for the child custody provision in the agreement to be excluded from said incorporation.


#3

No, the separation agreement was not incorporated into the divorce order (sorry, should’ve been more clear). An action for child custody arose afterwards based upon a change in living situation. There was a consent order, then yet another custody action resulting in a temporary court order. Now there are arguments about what is actually enforceable in the child custody part of the SA.


#4

I’m having difficulty understanding your question. Can you please start over and give me the facts so I can understand what you are asking?


#5

Sorry to be so unclear, Crystal. Here’s the situation…child custody and support were originally settled in a SA [color=#0000FF]which was not incorporated[/color] in the court order for the divorce. There was also a severability clause in that SA. Since then, several actions for child custody and support…consent orders and now a court order have been established. There are subsections under the SA that mandate certain things, which were not included in any consent orders or court orders.

The question is that since generally a court order supercedes child custody/support that is in a SA, are these subsections now null and void if they weren’t part of the court custody order or do they still apply as a contract?


#6

Do not worry about severability. The main thing to be aware of is that any new court order which you have had issued after the separation agreement does in fact supercede the agreement. Follow what the court order says, and you should be fine. The order will control on the custody issue.


#7

Thanks so much for the answer. I hate to be a pain, but if the court order is silent on a subject, does it revert to the SA or does the court order replace in toto the SA provisions whether or not they are directly addressed?


#8

I really cannot say without reviewing the SA and the Order, which is beyond the scope of the forum.


#9

I understand completely. Thanks for everything. :slight_smile:


#10

You are most welcome!