Separation Agreement Ignored by Spouse


#1

My wife and I and our attorneys met with a Mediator and signed a Separation Agreement in April 2013 which was notarized by the Mediator with our signatures. Over the past 4 months, my wife and her attorney continue to try to make ‘small modifications’ to the Separation Agreement that require my attorney to review and edit the wording so that I am protected. The changes are significant and have altered the original binding agreement and seem to have no end in sight to the number of frivolous edits. My wife and her attorney have ignored the items that have been required deliverables including putting the marital home on the market and other items called out in the Separation Agreement. I have met all of my obligations. What recourse do I have to get this process moving forward?


#2

*** Not a lawyer ***

Can’t you just say “No” to all these “small modifications”?

As for enforcing it, you’d do so like any other contract: sue for breach of contract and seek damages or specific performance. Your attorney should be able to tell you more about that, and see rosen.com/divorce/divorceart … -carolina/ for some details.


#3

thank you for the reply, sadsaddaddy. I ended up getting a second opinion from another attorney this week and also read the thread you shared on the Rosen website. Your response was similar to the second attorney’s options available to me. I have many more options to pursue legal action than I had understood in the past. Looks like I’m getting no bonus points for being patient; just less and less sleep at night, and more and more aggravated at the system. I will be sitting down early next week with my attorney and coming up with a concrete strategy to getting this resolved. Thanks again! Not sure if an attorney would have much better advice than what you shared.


#4

My ex wife is not following our separation agreement with regard to the custody schedule. Our agreement was not part of a court order, it is simply a contract. Is my only recourse to file a lawsuit for breach of contract? I am not presently working with an attorney.


#5

If a party is not following the separation agreement, to enforce it you need to file an action for breach of contract. You can read more about the process on our website in our article, Breach and Enforcement of a Separation Agreement.

If the only provisions that a party is not following pertain to child custody, you should file an action for custody rather than filing a breach of contract action.


#6

Just wanted to share a current status update.

So, ended up filing the Breach of Contract through my attorney in September and she was served by the Sheriff with that paperwork in October. Before the 30 days was up on the Breach of Contract response requirement, she filed a “Motion and Order for Extension”, which extends her response another 30 days, which apparently is not something you can endlessly file over and over. We are moving ever so slowly closer to some sort of a resolution. But, the stalling and squatting in the marital home are wearing on my nerves and the stress of maintaining 2 homes is becoming more and more difficult to handle financially. She is definitely milking the system and has no guilt about not allowing me to move on with my life. But, but I am hopeful that the holidays will yield some sort of positive outcome.


#7

Perhaps the suit will prompt her to make some movement eventually, and if not, I’m hopeful that the separation agreement included a provision for attorney fees.


#8

If anyone is interested in following this post, here is the latest:

I think the ‘perhaps the suit will prompt her to make some movement’ was a bit of wishful thinking knowing that this didn’t look so promising. We received Motion to Dismiss the Breach of Contract today (final day of extension 12/30/2013) with a suggested court date of 2/7/2014 by Spouse’s now 5th attorney. I have an appointment on Thursday 1/2/2014 to review next steps with my attorney. Marital home still has not been listed. So, I continue to pay for the home mortgage/home equity loan/insurance per my duties to the Separation Agreement. Taxes are due on the marital home by 1/6/2014 and will most likely go unpaid.

Maybe 2014 will be a better year for me.


#9

Latest status on the Breach of Contract:

So, we have a Hearing scheduled for next Friday to determine whether or not my wife actually is in breach. I know, one would expect this to be a slam dunk. Wording in the signed and mediated Separation Agreement says ‘sell house’, you sell house by date x means by date x. Unfortunately, my attorney believes the Hearing will just be a preview of our subsequent court date for a judge to rule on the case. This will give my wife a couple more months of payment free housing. All in all, this continues to be quite a painful process making attorneys more money, my credit dwindling and my wife continuing to squat in the marital home with no clear end in sight.

Many many lessons learned to date that hopefully others can learn from this. Make sure your Separation Agreement is as air tight as possible with dates and penalties for missing key milestones. This contract would have been a perfect fit for two sane people who sincerely ‘just want to move on’. Unfortunately, when you have one of the two parties just looking to find holes and exploit the system, it makes for a very difficult situation. If you are going to Mediation, have your Mediator read this thread and say ‘I don’t want to be that guy’.

For those of you screaming ‘just stop paying the mortgage’ like my entire family and most friends, my attorney has advised me that this would look bad in the eyes of the judge. So, I continue to run up my own credit and borrow funds just to make those payments. (55% of my take home pay).

Hope to have better news soon.


#10

Not much positive news on this. Stay tuned for the novel version coming soon to your local book store.

At court, our attorneys had us draft up an agreement whereby the house would be immediately listed. So, home is now on the market. She has listed it at an inflated price, so couple sets of foot traffic, but no offers after 2 weeks on the market.

I have been unable to pay the mortgage since last post due to the financial stress the payments have on me and paying for my own housing. I have now exhausted my credit cards and ability to borrow money from friends and family, so we have now missed 2 mortgage payments. So, we are now looking at foreclosure for a home we have a fair amount of equity in. She will not entertain any purchase offers from me without it being at an inflated value. So, tough watching/participating in this train wreck in progress as the bank has notified us that the missed payments will be reported to the credit agencies on 3/2.

Follow up court date is second week of March to have her answer to the Breach of Contract. Still have another 2 months to go to Divorce.


#11

In case anyone had that ‘whatever happened to that guy’ thoughts, here is my current situation:

Marital home was finally put on the market 17 months after the original SA required it to be. After a breach of contract filing by me and 2-3 court dates that slipped, x-spouse was ordered to put home on the market with the realtor she selected. Despite x-spouse being completely inflexible with the negotiations with the buyers, I was saved by the ‘home must be sold if offer comes within 5% of asking price’ provision in the SA. (thank you attorneys!) Closing was in late November.

X-spouse delayed the divorce 5 months somehow with a court order. So, the 1 year, 1 day thing sort of never happened. My thoughts were she wanted to maximize the coverage on my work health insurance since the SA said I no longer had to carry her after divorce. Court order was dismissed and divorce happened anyway.

During the offer acceptance on the house sale, spouse had me arrested and brought false charges against me, which, after a few more court appearances, were dismissed. This was another attempt to thwart the home sale. I had to spend a full day in the Wake County jail after getting handcuffed in front of my neighbors. (BTW, Wake County Sheriffs need some training on cuffing people as I couldn’t breathe very well sitting on my handcuffed hands in the front seat of the cruiser. Sheriff ignored me saying ‘I’m having trouble breathing’). She also disconnected my tv, cable and internet during my incarceration. (I know, who does this?). If you want to end any chance of positive relationship with your former spouse, getting them arrested is a good idea. Otherwise, worse day of my life. By far.

Due to the arrest, I also had to go see Child Protective Services and be interviewed with my kids present to make sure they were not in any danger. I came up clean with that one too, but had to take time off work to arrange the interview.

We are currently headed back to court as we have held the closing funds from the home sale at the closing attorney’s office. We don’t agree on closing fund split as she sold several of my possessions to the Buyers without my knowledge. A few thousand dollars worth of stuff. So, we’ll see how that pans out.

Child custody seems to be about the only bright spot. I think we are both genuinely committed to making this painless for our children, despite my x-spouse’s efforts at dragging this out and making things pretty impossible. She refuses to pay 1/2 of medical expenses as called out in the SA (and I prove with actual statements from kids’ pediatricians), so that is a sore spot.

I try to find humor in this as I definitely have the most difficult divorce of anyone I have ever met that has gone through this. If you feel like there is no worse it could possibly get, just think of me and somehow I have been able to get through it. Try your best to make an effort to be as cooperative as you can with all parties and rely on your friends to help distract you from this negative situation. Attorneys aren’t perfect, so, if you know your spouse may poke holes in your SA, make sure they are extra diligent at closing the loopholes as much as possible in advance. Remember, your kids and family watch how you react to adversity. Show them they are right to feel confident you are a worthy role model.

Things will eventually get better.