I was granted an absolute divorce today (1/17/14). When I filed the Complaint for Absolute Divorce (12/2/13), I asked that the Marital Separation Agreement be fully incorporated into the judgment of divorce. When I went before the judge today, she said I would have to go to another courtroom, see another judge, etc. I said no thanks and I signed a notice of voluntary dismissal to incorporate the separation agreement. What type of enforcement power do either of us have now, if one of us balks at one or more of the provisions of the separation agreement? Would you recommended going back and retroactively incorporating it? We separated on 11/22/12 and signed the separation agreement on 11/26/13.
*** Not a lawyer ***
The non-incorporated separation agreement is a contract, and can be enforced like any other contract, for example with a suit for breach of contract or for specific performance. Whether it’s worth having it retroactively incorporated (if that’s possible), I have no idea.
There’s a page on this site titled “Breach and Enforcement of Separation Agreements in North Carolina” which has more detail on this issue; I’d link it for you, but linking is disabled.
Separation agreements are enforced by filing a breach of contract action. You can read more in our article: Breach and Enforcement of a Separation Agreement. If you need to enforce provisions concerning child custody, you will need to file an action for custody. One big concern is whether you can modify child support in the future which is dependent upon the terms contained in the agreement.