It is very doubtful. There really isn’t a judge that would overturn the agreement, since you both signed it. AND because he quit claimed the house, he has absolutely no claim to it (my ex did that too). They are just trying to scare you, don’t worry about it.
apjones is right, he’s trying to scare you into giving in. There does not even have to be a separation agreement for you to be separated and filing an agreement with the courts is just an added step. There really is no such thing as “legally separated”. Separation starts the day one of you move from the marital home and only has to be for one year and one day to file for absolute divorce. If you have a signed, and notarized separation agreement it is all the better because it is a legal and binding contract between you two that can not be gotten out of. If he signed it he is legally bound by it as are you.
Since there is no “legal separation” then there is no reason to put into the adoption papers that you were separated. The separation agreement would not need to state you were separated because that is there sole purpose for being. In NC you are either single, married or divorced. Check tax records…you don’t file “separated”. You’re attorney is right so sleep soundly [:)]
My husband’s ex tried to get their separation agreement overturned on the basis that she didn’t understand what she was signing due to being on medication for depression. She pushed to get them signed so that she could be seen in public with her boyfriend and he wouldn’t be able to go after them for AofA. So, their separation was somewhat amicable before he and I started dating and then she hit the roof. Luckily, we had proof, from his insurance pharmacy co-pays that she was not taking the medication prescribed. She “caught” a mistake in the agreement copy she had before she signed then there was no convincing a judge that she couldn’t understand the rest of it. There were three drafts done before she would sing. My husband had been on that same medication for three years prior to their separaion and there is also the fact that depression medication does not make you ignorant of the law…[;)] She told her attorney that he read the papers to her and lied about what they said. After he saw and heard our “evidence” he wouldn’t even take it to court…
Well, I have to disagree with the legal binding contract not being invalid. I just now went through this whole ordeal myself. And, it was a absolute joke… My husband and I had a legal and binding seperation agreement that he payed me on for 8 months then out of the blue decided to say that I blackmailed him to sign it. Now let me tell you briefly what happen. I had a lady contact me telling me she knew who I was and who my husband was but, wanted to let me know that she and others had seen him hanging out with a high school girl and was concerned of what it might do to his practice if people I guess would take it the wrong way…Merely making me aware that maybe he was doing something wrong to me who knows but, talk about turning things around in the court room. Well, all because of this lady calling and not letting me know who she was. I wish I new just so I could thank her for giving me heads up on him . However, it seems my husband and his attorney were using this to say I blackmailed him into signing this contract that there was never a phone call I made it up so He would have to give me what I wanted!! Or at least thats what his attorney said nuts I’m telling you and guess what the Judge apparently bought into this ladies story and screwed me and my kids… My husband made up all this crap that I said she was going to report him to the licensing board, and I said that this lady had planted teeenagers in his clininc. Crazy crap like that. Now mine you he’d been paying me for 8 months not one
time did he say I blackmailed him until I wanted him to come to some terms on how to buy me out of his practice. Well, guess what folks I got screwed big time in court…Thats right I had a judge that looked all passed the fact that he did all these other things wrong and looked at me like I was lying because I couldn’t be exact on the dates or recall what I said in my deposition well, I’m sorry I don’t have a photographic memory I mean the dumb depos in front of his face he knows what I said But,hey lets see if she remembers what happen 2 years ago gimme a break.My friends who are attorneys have called to find out what the outcome was because they new all about my x’s history and was floored when they found out the judge said okay I will set the original agreement aside… What a joke. People everyday make bad choice and they have to live with it! But, this day this judge proved that laws and contracts can be broke because he allowed it to happen on Friday… I could not believe he actually set aside the agreement didn’t make him pay any backpay no attorney fees nothing… I was never so disappointed in our justice system then I was friday… My attorney was so mad and wanted me to appeal however, I am financially drained from going through this whole thing since 2005 I can’t do it…This judge will not only not get my vote if he runs again. I have to wait until we go to ED to see if I even will continue to get alimony and how much. Not to mention my husband lied and said he only makes 55,000 a year so hes paying state guide line childsupport… BE CAREFUL WITH THE CONTRACT THING…
First - what is it with all these long posts? - LOL - short, basic questions please. I do not need, nor will I generally read, all the facts.
Ozdawne:
Greetings. Generally the separation agreement will be upheld, even if certain provisions are ruled to be invalid. Just depends on your agreement. Since the adoption went through without any objection, etc., I would not worry about it unless you get a lawsuit from him and then just retain your attorney. 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
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.
Background Info:
Physically separated from ex in July of 2005.
September of 2005 he signed a seperation agreement which was drafted by an attorney and it was signed in presence of attorney, notary and notarized. He also signed a statement syaing he was representing himself pro se and recognized my attorney represented my interests, not his. That agreement performed the following:
-dividing all property and agreeing to quit claim the house.
-agreeing to adoption of his child ( who is 17 now and I raised from 3)
-assigning me primary physical and legal custody and control over visitation of that child and our child we share biologically, and child support. ( did this because he is mentally unstable with history of violence and hospitalizations and psychiatric treatment )
-Agreeing to a friendly lawsuit that would make the custody and child support issues final.
In December 2005 Adoption of child was final. Adoption papers stated we were married, which we are legally, did not state we were separated. We didn’t offer at hearing, they did not ask. He was there, as was attorney.
In March of 2006 the custody lawsuit was filed and the terms on custody and CS reflected in the papers was made judges orders.
In December of 2006 a no contest divorce was filed by me. It took a month to get proof of him recieving the papers. Have final hearning scheduled for February 27th.
Now here is the fun part. I kept all marital assets except for: one paid for car- a set of living room furniture, a bedroom set and some items of his which had sentimental value to him, like his grandmothers china etc. I also bought furniture for the kids to sleep on when they visit him and household goods to furnish his place to set up housekeeping. He agreed for me keep the bulk of the assets mainly because I made 90% of the income in the 14 years of marriage and he knew I would not go down without a fight. Also he was in a rush to begin his relationship with his affair partner.
He has a new girlfriend of 5 months he has moved in with, who has decided she wants a piece of my success. He is not eligible for alimony because of the adultry, so they think they can go after assets. I make considerably more money than him (about 3 times.) he now claims he is going to contest the divorce because he wants an equitable distribution of assets.
My attorney says the seperation agreement was a legal binding contract and there is nothing to distribute in the property arena, distribution was complete when it was signed.
My ex says he has recieved legal advice that says the seperation agreement is not valid because in the adoption papers it did not say we were separated and if I try to enforce it I will be admitting fraud to the court. He also claims the separation papers are not valid because they were never filed with a court. My attorney says they do not have to filed with a court to be binding, just signed and notarized.
I know what my attorney says, but this guy made my life a living hell and fear has crept in my head. Is there any chance he can have the separation papers overturned and get equitible distribution done 17 months later?
Dawn[V]