My wife and I legally separated in September 2014, but a formal separation agreement was not signed until mid January 2016. Our divorce was final and filed with Wake County on February 19, 2016.
My question is based on the title listed above in the subject line. In our separation agreement under the title listed above it states “husband and wife will not have any member of the opposite sex, unless they are family members, spend overnight with a parent while he or she has custody of the child.” I have documented (admissible) proof that my ex-wife’s boyfriend has spent the night several times while our daughter has been in her custody.
It further states “it is further mutually agreed that either party shall have the right to compel the performance of or sue for breach thereof of this Agreement in any Court where jurisdiction of the parties may be obtained. If either party shall fail to make any payment hereunder when due without demand or shall fail to keep and perform any other agreement or provision hereof, as determined by a Court or mutual agreement, the other party shall be entitled to recover reasonable attorney fees and all other expenses incurred in any action instituted to enforce the provisions of this agreement.”
When I originally confronted my ex-wife months back she stated via text message “I just didn’t realize it until pointed out. It was a mistake, not choice.” Even after this discussion her boyfriend has continued to stay while she is in custody of our child.
She takes it one step further when I ask did she not discuss/review the Agreement with her attorney before signing…she states “I didn’t. And he noted that we never discussed as it’s just a general statement.”
Long story short…legally what are my options?
Assuming you have a valid separation agreement (contract), you are likely able sue your ex-wife for breach of contract for having her boyfriend spend the night while the child is in her care. Your proof would need to show that she violated this provision in the agreement since the date that the two of you entered into the separation agreement.
The breach of contract paragraph that you made reference to would allow you to ask the court to recover your attorney’s fees, costs and expenses associated with bringing the breach of contract suit.
The fact that she did not read and review the separation agreement prior to signing it is irrelevant.
Check out our article Breach And Enforcement of Separation Agreements for detailed information.