Unless it was incorporated into a divorce judgement, the Separation Agreement is a private contract and not a court order. That means this is not a judgment to be satisfied a contract that may be enforced. Whether or not he is still obligated to perform depends on what the agreement says about reconciliation. He should take his paperwork to an attorney so that he can be given advice based on what the specific agreement says.
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax
Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044
Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
The Separation Agreement WAS incorporated into the final decree. That is why she hired an attorney to go after him. His entire paycheck went into “HER” account for the following 5 1/2 years. Not his account. During that time he didn’t write a “check” to her for $350 a month. Instead he put his whole check (which was much more than $350 a month) into her account. How can she now say that she wasn’t compensated? How do we fight this?
The Reconciliation paragraph seems like a standard paragraph in every separation agreement. It reads as follows:
In the event that Husband and Wife end their separation by reconciliation and resumption of the marital cohabitation, the executory provisions of this agreement shall be thereby canceled and rescinded, but all provisions hereof which have been executed or partially executed at that time shall, to the extent of complete performance, continue in full force and effect unless and until they are canceled or rescinded in a written agreement duly executed by both the Husband and Wife. The parties acknowledge, however, that the provisions contained above with regard to both real and personal property shall be deemed fully executed at the time this Agreement is signed by both parties and shall not be affected by a reconsiliation of the parties. The property transferred and assigned pursuant to the property settlement provisions of this Agreement shall remain the separate property of the parties as stated herein.
Based on the reconciliation paragraph his obligation to pay her ended as of the date of the reconciliation.
Even though the Agreement was incorporated into the court order, it is not a judgment and does not require a certificate of satisfaction.
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax
Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044
Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
My husband’s ex wife’s attorney just served him by certified mail with a Motion and Order to Show Cause that states he didn’t pay her the money from the separation agreement and setting a hearing for May 12th. My husband is currently deployed (non-active duty though) until some time in late July or early August. She knew he was deployed before she had the documents filed. How many days does he have to file a response to that motion? Also, can he serve her with discovery requests? Thank you.
Yes he can serve her with discovery requests. He does not have to file a formal response to a motion and order to show cause, he can show up in ourt on the date and discuss the allegations.
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax
Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044
Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
You state that based on the reconciliation paragraph his obligation to pay her ended as of the date of the reconciliation but what does he need to do exactly? Can he file a motion or some other pleading to get rid of this without having to go to court on the Order to Show cause? Does he need to prove they were co-habitating all that time to get her complaint dismissed? (Actually there is a separate action between the two in another county regarding timeshares purchased while they were “co-habitating” wherein she admitted in her counterclaim that they were simply “co-habitating” - living together not married during that time period. Can he use this public court document to show the Judge in this case?) Thank you for your help.
quote:[i]Originally posted by Helena Nevicosi[/i]
[br]Based on the reconciliation paragraph his obligation to pay her ended as of the date of the reconciliation.
Even though the Agreement was incorporated into the court order, it is not a judgment and does not require a certificate of satisfaction.
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax
Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044
Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
He can file a motion to dismiss the motion and order to show cause, but that will require a hearing, he can also show up in court and tell the court these facts. If he is deployed he can file a motion and order to continue to set the hearing for a date after he returns.
P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com/live for details
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax
Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044
Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
He already got the hearing continued. He was hoping to get rid of the case (if possible) without going to court when he comes home. So when he shows up for court all he has to do is tell the Judge that they lived together all that time and based on the reconciliation paragraph his obligation to pay her ended as of the date of their reconciliation? Does he need to prove they were living together all that time to get her complaint dismissed? Can he use a court document from another case where she admitted they were living together that entire time? Thank you for your help.
quote:[i]Originally posted by Helena Nevicosi[/i]
[br]He can file a motion to dismiss the motion and order to show cause, but that will require a hearing, he can also show up in court and tell the court these facts. If he is deployed he can file a motion and order to continue to set the hearing for a date after he returns.
P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com/live for details
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax
Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044
Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
I am confused. This reply is just a repeat from above and didn’t answer my recent questions. Is it possible to get an answer to these questions? Thank you so much!
quote:[i]Originally posted by cdd1204[/i]
[br]He already got the hearing continued. He was hoping to get rid of the case (if possible) without going to court when he comes home. So when he shows up for court all he has to do is tell the Judge that they lived together all that time and based on the reconciliation paragraph his obligation to pay her ended as of the date of their reconciliation? Does he need to prove they were living together all that time to get her complaint dismissed? Can he use a court document from another case where she admitted they were living together that entire time? Thank you for your help.
quote:[i]Originally posted by Helena Nevicosi[/i]
[br]He can file a motion to dismiss the motion and order to show cause, but that will require a hearing, he can also show up in court and tell the court these facts. If he is deployed he can file a motion and order to continue to set the hearing for a date after he returns.
P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com/live for details
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax
Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044
Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Here’s my take on this, after reading - when he finally goes to court when he comes home, have him, beforehand, subpeona her to provide copies of bank statements for that entire period in which they lived together. Have her provide this before court if possible. Once received, highlight each deposit made into the account that was his paycheck. While this is happening, obtain copies of pay stubs and the like for that period too, just in case it isn’t already obvious those deposits were made by him (if it doesn’t automatically say “DFAS DEPOSIT” or what it might say if automatically deposited into the account). This way, he’s covering his bases in case the judge DOES want to hear this argument.
Let me try to clarify my response a bit. No matter what he does, unless she agrees to dismiss this, a hearing is going to be required. He can file a motion to dismiss, but the court will require a hearing on that issue, they won’t just review the motion and make a decision based on that. I know he is trying to avoid court, but unless he settles with her, there is really no way to do that.
If he has proof they were living together, he should bring all of that evidence to court with him.
P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com/live for details
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax
Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044
Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
My husband served his ex-wife’s attorney with discovery requests and she objected that none of it was relevant (among other things he tried to get copies of her bank statements). This matter is set for court on Sept 12th so we don’t have much time. How does he get her to provide copies of the records without having to go to the expense of Subpoenas?
Although, in a different court case regarding their division of property they obtained after they divorced but were living together, she admitted in those Requests for Admission that they in fact co-habitated and that they drafted their “own settlement agreement” when they split in 2005 and that they co-mingled their money during the time they lived together. Can the Requests for Admission that she admitted to in that case be used in Court or better yet be sent to her lawyer along with a letter stating that she admitted to the co-habitation and the co-mingling of their money and pursuant to the reconciliation provision of their divorce settlement agreement from 1999 that his obligation to pay her stopped when they moved back into together and that this case should be dismissed? Is there case law regarding reconciliation? THANK YOU SO MUCH!!
In order to get the documents he needs to file a motion to compel and set it on the court calendar for hearing as soon as possible.
The requests for admissions can be used at this hearing as well.
P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com/live for details
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax
Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044
Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
NEED HELP PLEASE!!! My next question is, if they ended their separation by reconciliation and resumed their marital cohabitation from 2000 - 2005, based on the reconciliation paragraph in their 1999 Separation Agreement the executory provisions of the agreement are canceled and rescinded does this mean the ENTIRE agreement is canceled? (I am referring to all other provisions in the agreement such as alimony, child support, insurance, etc.) They did not prepare a new separation and settlement agreement in 2005 when they split. Does a NEW agreement need to be drafted and entered with the court? Also, if the 1999 Agreement is in fact canceled and recinded, does this affect his marriage to me in anyway? Thank you.
Any property that was transferred prior to the time that they reconciled remain each of their separate property. Any property that was not transferred prior to the date of their reconciliation remained marital property and a new separation agreement should have been executed to divide that property.
As long as they were legally divorced your marriage is valid and it will not be affected by whether or not they had a separation agreement.
P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com/live for details
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax
Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044
Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
My husband wrote a letter to his ex-wife’s attorney stating that after they divorced in 1999 that they moved back in together and held themselves out as husband and wife (even though they DID NOT actually re-marry) for the next 6 years. (Feb 2000 thru May 2005). He also provided several documents showing that they held joint accounts and property together, etc. When they split again in 2005, they drafted their own “settlement agreement” wherein they agreed that they co-mingled their assets and liabilities and they were unable to identify who was responsible for each liability.
The separation agreement reads as follows:
RECONCILIATION. In the event the Husband and the Wife end their separation by reconciliation and resumption of the marital
cohabitation, the executory provisions of this Agreement shall be
thereby canceled and rescinded, but all provisions hereof which
have been executed or partially executed at that time shall, to
the extent of complete performance, continue in full force and
effect unless and until they are canceled or rescinded in a
written agreement duly executed by both the Husband and the Wife.
The parties acknowledge, however, that the provisions contained
above with regard to the division of both real and personal
property shall be deemed fully executed at the time this
Agreement is signed by both parties and shall not be affected by
a reconciliation of the parties. The property transferred and
assigned pursuant to the property settlement provisions of this
Agreement shall remain the separate property of the parties as
stated herein.
My husband does not remember making any payments on this debt but as I stated before, he thinks he might have. How does that affect the agreement? Is it still recinded?
Her lawyer wrote back stating "I appreciate your position, however, since you are divorced, the agreement that was executed by you both is a valid agreement which was incorporated into your divorce judgement.
What does this mean? Obviously only one of us can be right. WHAT DOES HE NEED TO DO? HELP!!!
In addition, the divorce decree states that the Separation Agreement is incorporated into the divorce judgment. As far as statute of limitations, is a divorce judgment and separation agreement viewed as as a “judgment” or a “contract”. She is bringing this action just under the 10 year mark which I found was the statute of limitations for judgments. Contracts is less.
Also, she didn’t complain the 5 1/2 years they were living together that he “didn’t pay her” this money because of course she had his entire paycheck to spend, nor has she even brought it up the last 3 years they have been separated. Can she just pursue this forever just because she is spiteful?
At this point you probably need to set up a consultation with an attorney who can review all the facts of the case and give you a definitive response.
P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com/live for details
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax
Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044
Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
He (we) cannot afford an attorney or I wouldn’t be asking questions here on this web site. I thought this site was here to help people, especially those who cannot afford an attorney but I guess not. All the attorneys he tried to make an appt with want a $1500 “true” retainer upfront for doing absolutely NO WORK on the case (apparently this is just to “take” the case then they want and actual retainer that is then applied to the fees generated in the case. This is ridiculous! Why do the attorneys feel they are entitled to such a large amount of money for doing absolutely nothing in return? I have used lawyers in other states for myself and never encountered this issue.
The reason I have indicated you need to consult with someone is because the questions are too detailed for me to answer them adequately on this forum. The purpose of this forum is to provide a public service and information to people who have questions. It is not intended to act as a substitute for legal counsel and is not a place to give legal advice. I answer as much as I can, but there becomes a point where it is no longer possible to to answer them adequately based on the information provided.
Our office does not charge a retainer fee, we charge a flat fee for the services we intend to render. Many attorney’s charge a retainer because there are a lot of up front administrative costs associated with taking on a new client that you would not necessarily be billed for, in addition if you meet with an attorney and later decide not to use them, their meeting with you may prevent them from meeting with another client.
P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com for details
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax
Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044
Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.