Separation Agreement Incorporated


#1

ADDITION TO PREVIOUS POST:

My attny wants to file an appeal to the judge’s ruling to incorporate the separation agreement into the divorce order, even though there was not specific language in the agreement to do so. She said the judge was wrong and overstepped her authority.

Attny contends incorporation should not have happened and wants judge’s decision to do so overturned. Your thoughts on appealing?

Jay Rousseau


#2

Hey Janet,

I’m going to sign my Agreement today and give to her. Do I need a clause to have the Agreement included? I don’t want this problem but then again I don’t have kids. I want the Agreement to finish everything except getting the divorce final next year.

Thanks


#3

No reply and I have signed. I hope I don’t need a Incorp statement!


#4

Janet,

Are you researching? Are you going to reply? I see you have posted but not to my questions.

Thanks,
Mav


#5

Dear roussj01 and maverick:

Greetings. First, let me say that I answer posts from the oldest to the newest. Everytime you post something new, you move to the back of the line. You must therefore wait accordingly. Also, my clients come first, although all the posts on the forum are also important to me.

Now, to the questions in roussj01:

  1. I agree with your attorney on point one, although I find that highly unfair and I bet that some research would uncover that it is unfair for you to negotiate one custody arrangement and have it solidified by order after she moves.

  2. You cannot agree verbally to anything after you have an order. Send her a request to review the child support and ask for travel expenses. That may give you a reason in the future to ask for a modification of child custody. Your attorney is correct and you must pay the $800 in child support.

  3. Yes, you will have to file a Motion to Modify Child Support to get it reviewed. I would first send your ex a new child support guideline and ask her, in accordance with the order, to inform you if she agrees and then if she does not and you cannot come to an agreement, you may have the ability to file a Motion to Show Cause instead of a motion to modify.

I will let you know my thoughts on appealing. Let me do some research and get back to you.

Now to maverick’s posts:
I do not advise any of my clients to have their agreement incorporated, as that means that they have negotiated for terms based on contract law, but upon incorporation many things change. I doubt you need to incorporate your agreement.

Janet L. Fritts
Attorney with Rosen Divorce
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
RosenDivorce.com
919-787-6668

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 but a full discussion with an attorney should be undertaken before taking any action.


#6

Thank you Janet,

I’m truly sorry for my impatience. I didn’t mean to offend you in any way. It’s my fault for continuing to post. I didn’t realize I was shooting myself in the foot. I’m sorry.

Mav


#7

Dear maverick:

No apology needed. I just wanted to make sure you knew why you were not getting your answers sooner…LOL…your post made me think of my puppy when he has been bad and the song “I’m sorry, soooo sorry” was playing in my head. Cheer up and congratulations on signing your agreement. [:)]

Janet L. Fritts
Attorney with Rosen Divorce
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
RosenDivorce.com
919-787-6668

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 but a full discussion with an attorney should be undertaken before taking any action.


#8

I’ve signed. She hasn’t! She gave me an excuse and headed out of town. She’s probably stalling. Not sure. She said that her attorney wanted a clause about bank accounts included. WTF? I think it’s another lie. No need for things to be itemized if there’s a Equitable Distribution statement right? 2 of them to more precise.


#9

Dear maverick:

Greetings. If you have a separate account with just your name and she has a separate account with just her name…and there is an equitable distribution waiver…each of you keep your own accounts. Best of luck.

Janet L. Fritts
Attorney with Rosen Divorce
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
RosenDivorce.com
919-787-6668

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 but a full discussion with an attorney should be undertaken before taking any action.


#10

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#11

My spouse filed for divorce in Jan. 2004. We had a separation agreement that we both had signed, but did not specify to incorporate it into the divorce agreement. She requested incorporation of the sep. agrmt in her divorce complaint. I responded with a counterclaim to not incorporate the sep. agreement, as my attny advised it would be difficult to modify after incorporation into the divorce order.

Yesterday the judge denied my claim and incorporated the sep agrmt. into the divorce order even though it never referenced incorporation in the sep. agrmt.

Here is the problem:

  1. I did not want to incorporate the agrmt. because I wanted to get more visitation time with my daughter (we have joint custody; spouse has physical custody). My attny told me I cannot file a custody complaint requesting more time because significant changes of circumstances must be shown AFTER the divorce was entered yesterday. Spouse moved 180 miles away a year after we signed the separation agreement, causing me to lose some of my visitation as referenced in the sep. agrmt. Is there not a way I can request more visitation now? My attny says since there has not been a significant change of circumstances since yesterday, I cannot. She says I will have to wait until my daughter is school age (5 years old) on Feb 9, 2006 to ask for changes.

  2. The separation agreement said I would pay $800 a month in child support (calculated by both parties at time of sep. agrmt. based on both incomes, child care, etc.). The agreement also says we will review child support annually to keep in accordance with NC guidelines. We have NEVER reviewed the child support since separating. We did verbally agree a few months ago, based on her increased income and decreased child care expenses, that my payment would drop to $600 a month.

My question is: Do I formally have to file a child support review with the court to get the amount officially reduced? My attny says I do and she will charge me $1,000 to do so. I think this amount is extremely high. Since the sep. agrmt was incorporated yesterday with the divorce judgement, is my attn correct that I MUST start paying the $800 as originally agreed, or is my VERBAL agreement with my spouse to reduce the amount to $600 sufficient? I have been paying her the reduced amount for the last 3 months and even noted the amount on the memo section of the checks. Is this enough, or do I have to request a formal review? Is there a way I can do this myself without paying my attny $1,000 to do it?

Thanks for your help!

JR

Jay Rousseau