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/
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.
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