Me and my wife signed a mediated property settlement and separation agreement with an outside firm two years ago. This agreement was signed and notarized but not entered as a court order. What happens if one of the parties violates a provision of the agreement? Can the agreement be changed and if so how is this done? Do you have to back to a mediator or can the court ALL aspects of a mediated agreement. In other words if an agreement states father agrees to pay something additional towards activities or something else that is typically covered by child support, can the court overturn all of them in ruling a new order amount?
Your separation agreement resulting from mediation is a contract between you and your wife. If one party violates the terms of the agreement, then that person is in breach of contract. The other party can sue the violating party for breach of contract.
Whether or not the agreement can be changed depends on the terms in your separation agreement. Most separation agreements include amendment provisions that allow for the parties to amend a portion of the separation agreement by mutual agreement and notarized signatures. Sometimes separation agreements will require that the parties attend mediation first in an attempt to resolve any conflicts regarding amendments.
If your separation agreement does not state that the parties are required to attend mediation first, and you want to change a child custody or child support provision, then you can file a court action against your wife for child custody and/or child support, as applicable. A judge can issue different child custody or child support terms than what is in a separation agreement (i.e. the court is not bound by the terms of the separation agreement).
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
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