Violating Post Separation Agreement


#1

Dear ABB,

If the separation agreement states that the payments stop when she remarries, then she is in violation of the agreement. The penalties depend on the specific terms of your agreement.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

ROSEN.COM

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.


#2

N.C.G.S


#3

Update: The separation agreement states (this is my husband’s previous marriage):

"Defendant shall pay postseparation support to the plaintiff in the amount of


#4

Interesting situation you have here. Your issue would be much simpler if the separation agreement stated that payments were to stop upon entry of order either denying or granting alimony, or upon ex-wife’s cohabitation and/or remarriage. But alas, it apparently does not, so you need to devise another approach to rectify this clearly unjust situation.

A separation agreement cannot supersede state law, or conflict with the public policy of the State of North Carolina. To the extent that it does, said contract is void. NCGS 52-10, 52-10.1. The statute you cited (NCGS 50-16.9) refers only to judgments and orders rendered by courts; they are silent as to separation agreements between the parties.

The North Carolina General Assembly intended that alimony is to end upon remarriage. The “gotcha” here is that our courts have traditionally accorded parties great freedom to contract as they see fit. So, if a hypothetical supporting husband were to agree to pay alimony to his dependent “How dare you ask me to assume any financial responsibility for myself!??” ex-wife forever - regardless of ex-wife’s remarriage - it is not clear how the courts would view this. I think you could make a strong argument that the separation agreement violates NC public policy. On the other hand, women often get whatever they want financially in domestic court, so the likelihood of this argument prevailing is uncertain.

With child support, a court will typically not relieve an obligor parent from an agreed-upon obligation in excess of that required by law. It will, and often does, increase the obligor parent’s child support payment if it determines that the amount in the agreement is “insufficient.” I’m not sure if a court would treat alimony the same way.

So, what do you do? Have your husband file a motion in court to set alimony. According to the statute you cited (NCGS 50-16.9), the judge cannot - according to NC state law - award alimony to your husband’s ex-wife because she is remarried. The judge will enter an order denying alimony and the condition specified in the separation agreement will have been satisfied. Voila!


#5

Thanks, WakeDad.

I most appreciate your insight. Are you a licensed lawyer in NC?

I request Helena Nevicosi to provide corroboration.

ABB


#6

Dear ABB,

I am confused as to why the separation agreement did not resolve the issue of alimony.

If it did not resolve then issue then your Husband should contact an attorney who can get a court order denying alimony on the basis of remarriage and end alimony. This may be tricky if their is no court action pending and the Separation Agreement says nothing about this issue.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

ROSEN.COM

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.


#7

In my husband’s case, he was required to pay his ex post separation support for 24 months (even though they had been separated for 10 years prior to finalizing the divorce…long story, but she had him convenienced that he was better off being separated than divorced because it would cost him far more financially…he believed it, SHE WAS WRONG! The time they were separated counted as MARRIED and she ended up getting 31% of his military retirement and post separation support). Anyway, immediately after the post separation support award to the ex, she moved in with a boyfriend. Little did we know that we could have motioned to have the post separation support STOPPED due to change in circumstances. We learned this just last summer when we sought legal counsel for a custody issue. SO AGAIN, my husband was biased by the court because we had completed payment of the two years post separation support and we could not go in AFTER THE FACT! My advice, get in touch with a lawyer fast. Also, get a copy of the North Carolina family law books and learn as much as you can about the law so you can talk intelligently and ask the right questions of the lawyer.


#8

Dear D G:

Thanks for the information. All the laws are here on our website - so no real need to buy the books too, unless you just want to. Good luck.

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

ROSEN.COM

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.


#9

If an ex-spouse has remarried on May, 2006, and does not disclose this to the court to request stoppage of alimony payments from the previous spouse, is the ex-spouse:

  1.   in violation of the separation agreement; and
    
  2.   subject to reimbursement and/or fines, from the time of the new marriage, to the one supplying the alimony?