My husband and I used a collaborative firm for our separation agreement. We have signed the agreement but are not yet divorced.
He has breached the agreement on several counts, and has been extremely uncooperative in working with me to divide our marital property, and has prevented me from getting my rightful property in a timely manner. He kept the house, and the majority of my possessions were still in it when I moved out. I’ve collected most of the “little” things since, but some very expensive items that we jointly own are still there and he refuses to allow me to get them or to compensate me monetarily for them.
Additionally, he owes me hundreds of dollars for things he has received checks for like jointly-funded 529 reimbursements, college tuition refunds for a class and a meal plan our son dropped, and an insurance claim check. He refuses to pay me those monies or to settle shared kids’ expenses from last July because it is “not a priority for him right now.” and so long as we’re “not over a year in arrears he is not worried about it.”
I found reference on the website to having a separation agreement rescinded in the event of breach. I would like to know if my case warrants this action. The agreement as it stands is very vague, lacks details of specific property distribution, and states no specific “time-frames” for reconciling shared expenses. I believe I am at a financial disadvantage with no recourse to get him to comply. I do not feel my collaborative attorney “had my back” and I would like to rectify this.
You can seek to have the separation agreement rescinded if your husband has materially breached the separation agreement.
Otherwise, you can file an action against him for breach of contract and seek to have the separation agreement specifically enforced (meaning to make him do exactly as the separation agreement requires him to do).
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
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’ve read the article and others on the subject, and think I have a good case.
I would like to know what happens if I file for breach, and before the case goes to court (or whatever the process is) he settles all of the complaints? Can I still recover attorney fees?
If you file a breach of contract action against your husband, you would have him served by certified mail or sheriff’s deputy, and he would have a chance to respond within 30 days of being served. There are no court dates automatically assigned.
Prior to scheduling a court date, you can attempt to work out the issues by negotiating what needs to be done in order for him to be in compliance, and you can also attend mediation.
You may be awarded attorney’s fees if your separation agreement states that the non-breaching/prevailing party shall recover his/her attorney’s fees in connection with having to enforce the separation agreement (many separation agreements state this). Otherwise, the payment of your attorney’s fees would be by consent of both parties or by scheduling a hearing date and having the judge decide.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
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.