Q: is it possible to file a motion to modify divorce judgment to remove a separation agreement that incorporated
is it possible to file a motion to modify divorce judgment to remove a separation agreement that incorporated the separation agreement into the divorce judgment thus making it part of the order when no consent was received at time of judgement?
per this article : "What about incorporating by default? Plaintiff files a complaint seeking absolute divorce and incorporation of separation agreement. Defendant fails to respond and does not appear at the hearing. Can the court incorporate? Certainly not if there is no provision in the separation agreement itself about incorporation, because there is no cause of action in North Carolina law allowing a court to turn a contract into a court order without some kind of consent by the parties. What if there was a provision in the contract agreeing to incorporation? Should the court assume the consent is still present ? source : https://civil.sog.unc.edu/whats-the-law-about-incorporating-separation-agreements/
Lawyers, want to be a Justia Connect Pro too? Learn more ›
- North Carolina
- (910) 333-9679
- View Profile
- Answered
A: If you are the Defendant and you failed to respond and your separation agreement is now a court order - there is likely very little you can do about it. Your best bet at having the separation agreement removed from the judgment is to have the whole divorce judgment set aside and your best bet at doing that is to argue you were not properly served. However, if you were in fact properly served, your odds of accomplishing a set aside or removal of the incorporation are likely less than slim and none. Of course, it never hurts to consult with a family law attorney who can review your circumstances in more detail. If your separation agreement was properly drafted, it should contain a clause regarding incorporation.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
