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As a divorce attorney practicing on Long Island, I know that for many Suffolk County and Nassau County residents, a separation agreement governs their schedules, finances and relationships with their children. It is expected that both spouses will follow the terms of the agreement, since they are terms that were mutually agreed upon. However, many clients become concerned when they realize that a spouse has breached one or more provisions of a separation agreement. There are certain legal considerations that must be addressed in order to determine how and whether such a violation can be addressed.

What Is a Separation Agreement?

A separation agreement is similar to a divorce agreement in that child custody, visitation and child support, spousal support and the division of marital property are addressed within the document. Unlike divorce, however, there is no judgment of divorce, and spouses will still be legally married even though they live separately.

Is Your Separation Agreement Legal?
First, it is important to determine whether your separation agreement meets the legal requirements of form and language that are needed in order to make the agreement legally binding. Especially when minor children are involved, the agreement must address all relevant issues such as child custody, child support, spousal support and division of assets. While these agreements are presumed to be valid, a spouse who violates the agreement may claim that the agreement itself is invalid. This argument can be made based upon fraud, coercion or duress, fundamental unfairness or inequity of the agreement. If any assets were hidden at the time the agreement was signed, or if someone was unfairly pressured or even threatened into signing the agreement, a court may find that the agreement is invalid. Furthermore, if the agreement leaves one spouse with nothing or close to nothing, a court may find that the agreement was unconscionable and cannot be enforced.

How To Enforce a Separation Agreement
However, most separation agreements are executed by spouses who wished to part ways. As such, the above defenses are often unavailable. Generally, violation of a separation agreement is a civil contract matter; breach of contract cases can be brought in a civil court in New York in order to have a judge order specific performance of the contract (a court order for the defendant to do what the separation agreement requires, such as making support payments), injunctive relief (a court order prohibiting certain action), or even monetary damages incurred by the breach. The parties can enforce this type of separation agreement in the same ways that other contracts are enforced. Because a Separation Agreement is a contract, it is enforceable in court just like any other contract. Punitive damages, however, are unavailable in the State of New York.

Contract or Court Order?
However, whether a separation agreement can be enforced depends on whether the agreement is simply a contract or has become part of a court order. Upon divorce, a judge may incorporate part or all of the terms of a separation agreement into the divorce agreement. Any terms that were not incorporated into the divorce agreement are considered to have “survived” the divorce. These terms remain contractual terms that are not part of a court order, and upon which separate action may be taken. However, the terms that were incorporated into the judge’s order are held to a different standard in the courtroom. In this regard, if your spouse violates of a provision of a court order (or one of the “incorporated” terms), he or she has violated a court order and may be held in contempt of court. It is important to determine whether the terms were incorporated into the divorce agreement, and whether the breach occurred prior to or after the incorporation.

Incorporated Into Divorce Agreement
When preparing for divorce, parties will often stipulate to have the terms of the separation agreement incorporated by the divorce agreement; this ensures that the spouses will continue to abide by the agreed-upon schedules, division of property and financial arrangements. Unfortunately, those involved in a contentious split may find that circumstances and minds change over time.

Free Consultation with Long Island Divorce Attorney

At your consultation with your divorce attorney, an experienced attorney can help you to determine the best way to proceed depending on which terms of the agreement your spouse has violated. Contact the Law Office of Robert E. Hornberger, P.C. at 631-923-1910 today for your free consultation.

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Our 41-page “Guide to New York Divorce: What You Need to Know Before Hiring a Divorce Lawyer in New York” written by an experienced family law lawyer Long Island’s Robert E. Hornberger, Esq., provides you with real information on the divorce process and the laws it rests upon in the state of New York. This book will help give you a solid foundation upon which you can begin the process of making your family’s, life better. Download your Free Guide to New York Divorce here.