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How to enforce a provision of a Separation Agreement incorporated but not merged into the divorce decree?
Anonymous3 views3 answers
We separated and signed a Separation Agreement 5 yrs ago. After 4 yrs my husband decided he did not like it and tried to set the agreement aside during our divorce proceedings. I got a hearing on validity of the agreement and the court confirmed it's valid. 3 weeks ago we finally got our Judgement of Absolute Divorce with the Agreement incorporated but not merged. Per Agreement, he must maintain a 500K Life Insurance policy with our child as a beneficiary and provide me regularly with a proof. He has never done that. Can I file for contempt for violating this provision of the agreement? Is it too soon (even though the agreement is 5 yrs old, the divorce is just 3 weeks old)? There are some other provisions he broke, should I file all together or separately?,
Thanks.
Up until the court incorporated your separation agreement into your divorce decree three weeks ago, your now ex-husband's breach of the separation agreement (failure to provide proof of life insurance) was merely a civil contract matter. Now, any breach following the incorporation of the agreement into the divorce decree becomes enforceable (and punishable) as a contempt matter. Your judgment of absolute divorce does not become final until 30 days after its entry (because he has a right to file an appeal during that time). Any breach which occurred prior to its incorporation will not be a contempt. My suggestion is that you send a detailed letter listing each part of the separation agreement you want him to immediately comply with, give him sufficient reasonable time to comply, and then if he fails to comply, you would be in a position to file for contempt. If you have a lawyer, and the agreement provides for the payment of attorney's fees incurred in enforcing the agreement, then you should have an attorney file the contempt action for you. If you do this on your own, make sure you send your letter certified, return receipt requested, and keep a copy of the letter, as you will need these things to prove your claims.
You should do your best to consolidate all motions that are relevant to your separation/divorce agreemnent and you should bring a contempt if he is not complying with the terms. In some circumstances you can file for costs and atty fees for his failure to comply and for your necessity to file a contempt, check out the local rules they may help. Take care and I hope that things work out.
A Motion for Contempt would be the way to go but to just quite yet. Your Judgment of Absolute Divorce is not yet final until 30 days have passed since it was docketed. So only then can you use the contempt option to force compliance. It is probably better that you wait until those 30 days are up and then contact him or his attorney with a written list of what you believe the violations have been and what is necessary to correct that. If after that he still fails to comply, a contempt motion is in order. If you have to litigate the contempt motion, you certainly need an attorney. But, you may be awarded attorneys fees and/or court costs for having to file the motion. Good luck!
