My husband filed for a divorce recently. He was granted one, so I am divorced now. If the separation agreement was NOT incorporated into HIS divorce, it is my understanding it is still binding between us until it is changed. He keeps saying we have no agreement. I think he is trying to use the fact that he is remarried and that our separation period has ended to claim that it’s not longer valid. I need to know the law concerning our current agreement and his obligation to pay his child support. Thank you.
I’m not an attorney, but if you both signed it and it is notarized, then it should be valid whether it was incorporated or not. A seperation agreement is a legal contract and can only be voided or amended if you both agree to it. One caveat to that though, if you have children, a court may amend any provision related to custody or child support. The court retains control of that in order to protect the best intetests of any children. So, he should be obligated to pay child support as per your agreement unless one of you files a motion to amend it with the courts.
Wonderful. Thank you.
A valid separation agreement (Husband and Wife both sign and both signatures are notarized) remains valid past the entry of the absolute divorce even if it is not incorporated into the divorce judgment. A separation agreement is a contract that is not voided solely by entry of an absolute divorce. Unless there is a court order to the contrary, your husband still has a child support obligation pursuant to the terms in separation agreement.
You are correct that unless there is a special provision providing for the separation agreement becoming null and void, it remains in full force and effect unless amended by both parties.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
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