Incorporation of Separation Agreement or Divorce Decree


#1

I am about to file for divorce in Forsyth County, NC. What is required for the initial filing?

Also, we have a divorce decree that details property division, child support, and custody. What are the pros and cons of incorporating versus not incorporating the agreement? If I decide to incorporate it, how do I do that? I know that I include it with the complaint, but how do I word it and do I also include it with the judgement?

If I don’t incorporate the agreement, should I include a child support order with my divorce filing? If so, how do I do that?

Thanks so much!


#2

The following link is our Do-It-Yourself Divorce kit that explains everything you need to know about filing for divorce:

rosen.com/divorce/divorceart … orceguide/

A non-incorporated Separation Agreement is binding under contract law, and you would sue for breach of contract if your ex fails to abide by the terms of the agreement. If you incorporate the Separation Agreement into your divorce decree, it is enforceable as a court order, and the court has the power to hold a party in contempt if there is a breach.

If your Separation Agreement includes the child support obligation, you do not have to include it when you file for divorce. Either party can always file a motion with the court to modify child support if circumstances change, regardless of whether the child support obligation was set forth in a separation agreement or a court order.


#3

Thanks for the info, however I’m sill unclear as to how to go about incorporating the separation agreement. Can you please explain that?

Also, do I need to state in my Judgement that my ex will pay $xxx amount of child support?


#4

You have to request it in your divorce complaint and have the judge put it in the divorce judgment. Whether a judge will do this depends on the policies in the jurisdiction and whether there is language in the separation agreement allowing for the incorporation of the agreement into the decree.


#5

There is language in the agreement that states we are requesting that the agreement be incorporated into the absolute divorce. What language do I need to use in the divorce complaint to get it incorporated in the divorce? Do I put a specific statement in the complaint, then include a copy of the signed and notarized agreement with the complaint when I file?


#6

The complaint will need to reference your wish to incorporate the separation agreement, this is necessary because your former spouse needs to be on notice about your intention to incorporate. You will then need to have the judge attach a copy of your separation agreement to the divorce judgement. You can always include copy of the separation agreement with the complaint as an exhibit, but this will not necessarily control the judge’s order.


#7

How do I reference the separation agreement in the complaint? How do I phrase that?


#8

The following wording would work:

“The Plaintiff and Defendant entered into a Separation Agreement and Property Settlement dated the [DATE OF SEPERATION AGREEMENT], a copy of which is attached and made a part hereof by reference thereto, which the Plaintiff desires to have made a part of the Judgment for Absolute Divorce entered in this action.”


#9

You are a lifesaver!

So, I know he doesn’t sign the forms I get to file until he’s served, but does he need to sign that separation agreement that I’m attaching to the complaint prior to my filing it?


#10

He doesn’t need to sign the copy of the Separation Agreement, but the copy should include the page where he signed the original document.


#11

Maybe I’m misreading your reply, but that seems contradictory. Does he sign the agreement and I file a copy of it or does he not sign it at all until he’s served?


#12

My apologies for the confusion. Your spouse must sign the separation agreement. A validly executed agreement must be signed by both parties in front of a notary.


#13

Now, he is fighting the amount of child support. Can I take the child support section out, have him sign the agreement, and enter a request in my complaint for the court to decide child support? If so, can you please tell me how to word that?


#14

Your separation agreement does not have to include child support. It can be tailored to cover the areas you agree on. You will not include your request for child support in your complaint for absolute divorce. You will have to file a separate complaint for child support. Use our sample complaint as a guide (you would remove custody/alimony/property if those are settled in your separation agreement).


#15

Hi. Thank you so much for all your help. Everything went smoothly and the divorce was finalized on 9/8/2014.

Question: In our agreement, I was keeping a Jeep Liberty that was in his name and he was making the payments until it was paid off, at which time, he was going to transfer the car into my name. The agreement also states he pay $320 a week in child support. It was incorporated into the final divorce decree. Now, the Jeep is falling apart and I need a new car. I can’t trade it since it’s in his name and not paid off, but he has agreed to take the Jeep himself and increase his child support payments to $410 a week since he’s now in a job where he makes much more money. How do I amend our agreement? Is it binding if we just have something in writing that we’ve both signed in front of a notary or do I need to file the amendment somehow with the court? If the latter, how do I do that?


#16

If you both agree to the changes, you can make an amendment to the agreement. I would file a consent order containing the amendments and have it filed and signed by a judge.