You and your spouse have a Separation Agreement. You been separated over a year. Now one of you wants to get the divorce. Should your Separation Agreement be incorporated in the divorce decree? The answer is: “It depends.”
You first need to understand what it means to incorporate your separation agreement in the divorce decree. In order to incorporate your separation agreement, you would attach a copy of it to the divorce complaint and request that Court incorporate the separation agreement in the divorce judgment. When that occurs, the separation agreement becomes a court order. In other words, your separation agreement morphs from a contract between husband and wife into a court order.
Some advantages of having those provisions in a court order rather than a contract:
- Property distributions or payments that have not yet happened are now court-ordered.
- Your remedy for violation of a court order is contempt, which is scarier than breach of contract.
- With contempt you won’t need to file a new action, which could save you some filing fees and costs.
- Alimony becomes modifiable.
Some advantages of not incorporating your separation agreement:
- Privacy. Once you file the separation agreement to get it incorporated it becomes a public record.
- The easier Clerk of Court divorce judgments are not available if incorporating a separation agreement.
- Easier to keep Alimony non-modifiable.
As you can see, the answer to the question of incorporation depends on your particular circumstances. Does the separation agreement provide for your spouse to make property division payments, mortgage payments or insurance payments that benefit you? You may want the added teeth of a court order. Does your spouse need the added “incentive” that the possibility of contempt may provide? Then consider incorporating your separation agreement. If there are no provisions in the separation agreement that will need to occur in the future, incorporating the separation agreement is probably unnecessary.
Do you prefer that alimony be modifiable? This may depend on whether you are the one paying or receiving alimony. It may also depend on what you think the future may hold. If your economic situation or that of your spouse may change dramatically in the future, modifiable alimony may be better or worse for you, depending on your circumstances.
Ultimately, this is a question that depends on your particular wants, needs and circumstances. This is a decision that can have a dramatic impact on your future. Therefore, it is one of those questions that would benefit from a discussion with a North Carolina family law lawyer. Do you have questions about your own separation agreement? You need to know the pros and cons of each potential decision. Contact Irvine Law Firm and let us help you. You can schedule an in-person appointment, a telephone or email consultation. Also consider one of our online options such as our document review service. Don’t leave your future up to chance.