Archive

• Separation and Property Settlement Agreements: When does breach by one party excuse performance by the other?

  This entry was contributed by Cheryl Howell on April 11, 2018 at 8:00 am and is filed under Family Law.

  Father files a complaint alleging mother breached terms of an agreement by not paying alimony and child support. Mother admits she has not paid but argues that she should not have to pay because dad consistently has failed to comply with the custody provisions of the agreement by refusing to allow her to see the children and has repeatedly violated a provision in the agreement that he would not harass her.

  Can father enforce the contract against mother if mother proves he also breached the contract? Does his breach excuse mother’s performance? Continue Reading

• What’s the Law About Incorporating Separation Agreements?

  This entry was contributed by Cheryl Howell on February 6, 2015 at 5:00 am and is filed under Family Law.

  Incorporating a separation agreement has significant consequences. The contract becomes a court order. Contract remedies are no longer available but the contempt power of the court is. Some provisions become subject to modification, and remarriage and cohabitation will terminate spousal support provisions. Obviously an important decision, parties should think carefully about the pros and cons of incorporation before submitting their contract to the court.

  But what if one party wants to incorporate and the other doesn’t? When can or should the court refuse to incorporate?Does it matter that the person objecting agreed to incorporation in the contract itself? What if the plaintiff requests incorporation in the divorce complaint and the defendant fails to file an Answer or show up for the hearing? Can the court incorporate?

  Continue Reading