Specifics on separation agreement

North Carolina Divorce Law Divorce and Separation Answers
1

As I’ve written before, we had to evict the eldest child from our residence due to him getting physical with his father. The mother says that her attorney told her that we are in breach of contract on the separation agreement because we are refusing to allow him back in the house, although we have begun giving her more money to pay for the extra time she now has him.

We’ve looked back over the separation agreement, and found the following passage under the section titled “Alterations in Schedule”:

“They (the parents) recognize that alterations in the residential arrangements may have to be made from time to time in the future in order to accomodate the children’s needs and the parties’ own schedules.” (Then it goes on to specifically mention holidays.)

In addition there is under the section on Termination and Modification of Child Support a clause that states the child support may be terminated or modified when “The parties no longer operate under a shared custody arrangement”.

1.) Are we technically in breach of the contract?
2.) Do these two phrases provide evidence that custody may be altered by us in the best interests of the children (especially the younger remaining children) without a breach occurring?
3.) If we are technically in breach, what about the previous two times that the exwife altered custody based upon the wishes of the eldest child via email? We didn’t want to go to court, so we agreed upon the revised schedule. Does that remove her liability for her breach of contract on the previous two instances?
4.) If we are sued in court for breach and the terms of the agreement state that we would be liable for attorneys fees if we lost, would the court assign attorneys fees if we could prove that we can’t even pay for alimony and child support currently, much less her attorney fees?

Sorry, I hate to be such a pain in the butt, but my fiance can’t even afford to pay his utilties or student loans, much less for an attorney right now and will have to go even more into debt to pay the extra child support for not keeping the eldest 1/2 time.

2

In my opinion you are not in breach. The typical view of custodial schedules is that a parent MAY exercise custodial time, but does not have to. Further, in this case your reasons for not allowing the child back into the house are more than legitimate and you are clearly focusing on the best interests of the younger children.

I do not believe any suit for breach on the ex wife’s part would be successful, and therefore she would not be entitled to recover attorney’s fees.

3

Thanks Erin, hopefully that will be the last of it. She does have a penchant for threatening with legal action, so it’s hard to determine what’s real and what’s not.

4

I understand, and am sorry you are dealing with such a difficult person. I wish you all the best.