Are Separation Agreements Enforceable in North Carolina?

Spouses in North Carolina who are contemplating divorce may consider entering into a separation agreement, and this is a beneficial option for many husbands and wives. What happens if one spouse violates the terms of the agreement? Separation agreements that are not incorporated into a court order are typically subject to the same enforcement rules as other contracts.

Violating a Separation Agreement

Separation agreements can be incorporated into a final decree of divorce, but it is not required. If the decree includes language that incorporates the separation agreement, then the agreement is not enforceable or otherwise treated like a contract. However, if it has not been incorporated into the decree, or if the divorce is not final, the agreement is enforceable just like any other contract.

Clute v. Gosney

In the case of Clute v. Gosney, the parties entered into a formal separation agreement in April 2006. In April 2022, Wife filed an amended complaint for breach of contract and for ongoing and retroactive child support. In her complaint, she alleged that Husband violated the terms of their separation agreement by unilaterally decreasing his child support payments. First, he reduced the amount in 2017 from $908 to $600 per month. Then, he reduced the monthly amount to $150 in June 2021 and stopped paying altogether in December 2021. Additionally, Wife stated that Husband stopped providing health insurance for the parties’ children, as required by the agreement, and did not reimburse her for the children’s medical expenses.

In response to Wife’s pleadings, Husband filed a motion to dismiss. The trial court granted Husband’s motion and dismissed Wife’s amended complaint. Wife appealed.

The Court of Appeals ruled that Wife made sufficient claims in her amended complaint to seek a remedy for breach of contract. Husband claimed that the statute of limitations had expired, but the appellate court disagreed with the trial court’s ruling on this issue. Actions arising out of contracts have a three-year statute of limitations in North Carolina. However, the separation agreement was a sealed instrument, which means the statute of limitations is ten years. Wife’s amended complaint was well within the ten-year timeframe, and the Court of Appeals reversed that portion of the lower court’s order. The appellate court also agreed with Wife regarding the trial court’s error in dismissing her claim for child support under the North Carolina Guidelines.

Because Husband in this case violated the child support, health insurance, and medical cost portions of their separation agreement, and it had not been incorporated into a divorce decree, the Court of Appeals disagreed with the lower court’s decision to dismiss Wife’s amended complaint.