FAQ- Separation Agreements

Frequently Asked Questions about Separation Agreements

What is the difference between a separation agreement/contract and a court order?

A contract is a private agreement made between two or more parties which is not ever signed by a judge. A court order is a mandate entered by a judge at the conclusion of a trial or hearing, or entered by the judge as requested by the parties based on a mutual agreement (known as a consent order). A consent order is no different from any other court order in that it will be enforced by the court system just like any other court order.

A contract is non-modifiable; whereas court orders are subject to modification. Contracts and court orders also have very different methods of enforcement. If someone does not comply with a contract, then the aggrieved party’s recourse is to file a lawsuit for breach of contract (a request that you be compensated with money damages as a result of the other party’s non-compliance with the contract) and/or specific performance (a request that the judge order the other person to comply with the contract). If someone violates a court order, the aggrieved party’s recourse is to file a motion for contempt asking that the non-compliant party be sanctioned.

Should I include terms for child custody and child support in a separation agreement?

In most cases, no, terms for custody and child support should not be formalized in a separation agreement (i.e., a contract), and should instead be formalized in a consent order.  Custody and child support are subject to modification by the courts so long as at least one child is under 18. If circumstances change and your custody and/or child support terms need to be changed and your agreed upon terms for custody and child support are in a separation agreement that has not been incorporated into a court order, then you would need to file a lawsuit for custody and child support in order to put those claims before a judge. In going this route, courts are not bound by the terms of your contract and as such, will be making a custody and/or child support determination as a first impression. Courts cannot modify your contract, and so if you want a judge to make a decision regarding custody and child support, you would need to file a lawsuit. Additionally, if someone is not complying with a contract regarding custody and/or child support, contempt is a much quicker and easier remedy for you than filing a lawsuit for breach of contract and specific performance.

 Should my settlement be formalized in a separation agreement (i.e., contract) or in a court order?

This really depends on what issues have been settled. Because contracts are not modifiable and are very difficult to set aside or get out of, it may be more appealing to include terms for alimony and equitable distribution in a contract. Because court orders are subject to modification and are easily enforced, we commonly see child custody and child support terms formalized in a consent order. What makes sense for your situation depends on the particular facts and circumstances of your case and you should discuss this with a qualified family law attorney.

How do I enforce a separation agreement if my ex is not complying?

Separation agreements (which are contracts) may be enforced by filing a lawsuit for breach of contract and/or specific enforcement.

Are separation agreements modifiable?

No, contracts are not subject to modification by courts. 

Article written by Courtney Smith, Board Certified Specialist in Family Law


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