Separation agreement not being followed


#1

My ex seems to pick and choose which terms he wants to follow in the separation agreement he signed (was submitted to court with divorce papers and approved).

He was to pay a base amount per month and a percentage of any income over 100k. He’s currently paying the base amount, but has refused to the overage amount that is due each quarter (he’s also refused to obtain life insurance on the child support amount our agreement specifies). Part of our situation is complicated because he was unemployed for over 18 months. During this time, my parents loaned me over 100k. Per the separation agreement, I was to keep the house (worth nothing in this market) and pay the mortgage and equity line. Ex wasn’t obligated to pay on debt to my father, but the support amount per month was enough that I would be able to pay that back over time.

My question is whether I’m obligated to keep paying on the home if ex is not paying the agreed upon amount. I’m newly married, and we’d like to start fresh…but can’t, as we both have houses for sale. Do I have the option of walking away from the home and letting ex default on the mortgage? It is still in his name. If this goes to court – for him not upholding his part and me not being able to continue making payments, what happens to the rest of the agreement? Will the judge negate the entire agreement? What would become of the loan amount borrowed from my parents or the arreas in child support he didn’t pay while unemployed (30k)?

Am I better off just going to court to have them enforce the current agreement terms vs. risking having the whole thing thrown out?


#2

You are still obligated to abide by the terms of the Agreement, one party’s breach does not excuse the performance of the other party in this context.

You need to file a motion to have him held in contempt of the Agreement (now Order) for his not following the terms. The judge will enforce the agreement as written, and the agreement will not be negated or tossed out.


#3

I guess I don’t understand how I can be held legally responsible for paying on the mortgage when my ex is not giving me the money he agreed to which would pay for it…it will take months to get to court, so what do I do in the meantime with no money to cover the bills?


#4

If you are sued for breach of contract you may be able to defend such a claim based on impossibility.