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Separation Agreement and Custody - DO NOT USE AN AGREEMENT TO RESOLVE CUSTODY

Posted by Kathleen Murphy | Apr 03, 2020

If you have a lawyer who is preparing a Separation and Property Settlement Agreement for you that includes custodial provisions, you should be aware (and if you are not, question this fact) that the Agreement is a simple contract and essentially non-enforceable as to custody.   

No sheriff will aid you in enforcing a contract.  If your spouse moves with your children, a contract is not helpful.

Even if you and your spouse work well together, put the terms of custody into a court Order by consent otherwise known as a Consent Order for Custody.

Caveat:  You may resolve custody in a contract but you should also add a provision that mandates that the parties will enter into a Consent Order for Custody in addition to the contract.

The difference between a Separation Agreement with custodial provisions and a Consent Order for Custody has to do with enforceability.   If you have a non-working relationship with your ex, you do not want to be down the road with a document that will not be enforced by an action for contempt of court.   Contempt of court is when a party does not comply with an Order and the Court will aid you in the enforcing the provisions.

Please contact our offices if you have any questions about this blog and if you are under the advice of an attorney and did not know this fact, you may not be well informed.

About the Author

Kathleen Murphy

Kathleen Murphy is graduate of North Carolina State University with a B.A. in Political Science, 1985. She attended Campbell University Law School and received her Juris Doctorate, 1988. Ms. Murphy has been a family law attorney for over 30 years and has limited her practice solely to family law since 1988. On October 1, 2023, Kathleen accepted a position as a senior attorney with Triangle Divorce Lawyers and she can be reached at [email protected]. Ms. Murphy is a member of the North Carolina State Bar, North Carolina Bar Association, NCBA Family Law Section Member, is a trained Family Financial Mediator and a trained Child's Advocate. Ms. Murphy is married to a City of Raleigh Firefighter and has four children, three daughters and a son. Ms. Murphy is a contributor to an International podcast. Crime Stories with Nancy Grace is broadcasted daily and you can hear Ms. Murphy's comments on cases involving victims of family crimes and the impact of family court.