NORTH CAROLINA TRIAL JUDGES’
BENCH BOOK
DISTRICT COURT
VOLUME 1
FAMILY L AW
2019 Edition
Chapter 1
Spousal Agreements
In cooperation with the School of Government, The University of North Carolina at Chapel Hill
by Cheryl D. Howell and Jan S. Simmons
This chapter is one of ten chapters in North Carolina Trial Judges’ Bench Book, ISBN 978-1-56011-955-5.
Preparation of this bench book was made possible by funding from the North Carolina Administrative Ofce of the Courts,
as administered by the School of Government.
Copyright © 2019
School of Government, The University of North Carolina at Chapel Hill
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I. Premarital Agreements ................................... 3
A. Applicable Statutes ...................................... 3
B. Matters That May Be Included in a Premarital Agreement
under the Uniform Act .................................. 4
C. Construing a Premarital Agreement ..................... 5
D. Modifying or Revoking a Premarital Agreement ......... 7
E. Eect of a Premarital Agreement on Various Rights or
Interests of the Parties ................................... 8
F. Enforcing a Premarital Agreement ...................... 11
II. Postnuptial Agreements ................................. 13
A. Generally ............................................... 13
B. Requisites and Validity of Postnuptial Agreements ...... 14
C. Enforcement of a Postnuptial Agreement .............. 18
III. Reconciliation Agreements .............................. 19
A. Generally .............................................. 19
IV. Separation Agreements ................................. 20
A. G.S.52-10.1 ............................................ 20
B. Jurisdiction ............................................. 21
C. Form of the Agreement ................................ 22
D. Requisites and Validity of Separation Agreements ...... 27
E. Construing a Separation Agreement .................. 29
F. Eect of a Separation Agreement on Various Rights or
Interests of the Parties .................................. 31
G. Modifying a Separation Agreement ................... 40
H. Reconciliation ......................................... 49
I. Enforcing a Separation Agreement .................... 54
J. Eect of Bankruptcy .................................. 78
K. Eect of Cohabitation by the Dependent Spouse ....... 81
L. Eect of Remarriage of the Dependent Spouse ........ 83
M. Eect of Death of a Party .............................. 84
N. Eect of Divorce ....................................... 86
O. Attorney Fees ......................................... 86
P. Appeal ................................................ 88
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I. Premarital Agreements
A. Applicable Statutes
1. e Uniform Premarital Agreement Act. [G.S.Chapter52B, hereinafter referred to as the
Uniform Act.] For agreements executed before July 1, 1987, see discussion of G.S.52-10 in
Section II.B, below.
a. e Uniform Act is applicable to any premarital agreement executed on or after July
1, 1987. [S.L. 1987-473, §3.]
b. A premarital agreement is enforceable without consideration. [G.S.52B-3; Harllee
v.Harllee, 151 N.C. App. 40, 565 S.E.2d 678 (2002) (noting that the Uniform Act
explicitly dispenses with the need for consideration as a prerequisite for the enforce-
ment of premarital agreements entered into on or after the Uniform Act’s eective
date).]
c. A premarital agreement must be in writing and signed by both parties. [G.S.52B-3.]
i. A Syrian contract of marriage signed by wife’s father did not meet the require-
ments of G.S.Chapter52B and could not bar wife’s right to alimony and equi-
table distribution. [Atassi v.Atassi, 117 N.C. App. 506, 451 S.E.2d 371, review
denied, 340 N.C. 109, 456 S.E.2d 310 (1995).]
d. A premarital agreement does not have to be acknowledged. [See G.S.52B-3 and
Ocial Comment thereto.]
e. A premarital agreement is eective upon marriage. [G.S.52B-5.]
i. Marriage is a prerequisite for the eectiveness of a premarital agreement under
the Uniform Act. [Ocial Comment, G.S.52B-5.]
ii. If a marriage is later determined to be void, the agreement is enforceable only to
the extent necessary to avoid an inequitable result. [G.S.52B-8.]
iii. e Uniform Act does not cover agreements between persons who live together
without marrying. [Ocial Comment, G.S.52B-5.]
2. G.S.52-10.
a. A person of full age about to be married may, with or without consideration, release
and quitclaim rights that they might acquire by marriage in the property of the other.
[G.S.52-10(a).]
b. G.S.52-10 applies to agreements to which the Uniform Act is not applicable. [See
Harllee v.Harllee, 151 N.C. App. 40, 565 S.E.2d 678 (2002) (premarital agreement
executed in 1984 governed by G.S.52-10).]
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c. A premarital agreement under this section is enforceable with or without consider-
ation. [G.S.52-10(a).] Before passage of G.S.52-10 in 1965, common law recognized
the marriage itself as sucient consideration to support a premarital agreement.
[Harllee v.Harllee, 151 N.C. App. 40, 565 S.E.2d 678 (2002) (citing 1 Lee’s North
Carolina Family Law §1.45 (5th ed. 1993)).]
d. G.S.52-10 does not require acknowledgment of premarital agreements. [See
lang uage in G.S.52-10(a) requiring acknowledgment only of agreements executed
by a “husband and wife made during their coverture”; Howell v.Landry, 96 N.C. App.
516, 386 S.E.2d 610 (1989), review denied, 326 N.C. 482, 392 S.E.2d 90 (1990).]
3. G.S.50-20(d).
a. Before marriage the parties may by written agreement, duly executed and
acknowledged pursuant to G.S.52-10, or by an agreement valid in the jurisdiction
where executed, provide for distribution of marital and divisible property.
[G.S.50-20(d).]
b. Premarital agreements whereby the parties dispose of their property upon divorce
through the provisions of the agreement rather than by equitable distribution are
expressly allowed by G.S.50-20(d). [Harllee v.Harllee, 151 N.C. App. 40, 565 S.E.2d
678 (2002).]
B. Matters That May Be Included in a Premarital Agreement under the Uniform Act
1. Rights and obligations in property, whenever and wherever acquired or located. [G.S.
52B-4(a)(1).]
a. “Property” is dened as “an interest, present or future, legal or equitable, vested
or contingent, in real or personal property, including income and earnings.”
[G.S.52B-2(2).]
b. e term “property” is designed to embrace all forms of property and interests
therein and may include rights in a professional license or practice, employee benet
plans, and pension and retirement accounts. [Ocial Comment, G.S.52B-2.]
2. Right to buy, sell, transfer, use, exchange, abandon, lease, consume, expend, assign, create
a security interest in, mortgage, encumber, dispose of, or otherwise manage and control
property. [G.S.52B-4(a)(2).]
3. Disposition of property upon separation, divorce, death, or other event. [G.S.52B-4(a)(3).]
a. Parties to premarital agreements may freely relinquish all rights to each others’ prop-
erty. [Brown v.Ginn, 181 N.C. App. 563, 640 S.E.2d 787 (citing Prevatte v.Prevatte,
104 N.C. App. 777, 411 S.E.2d 386 (1991)), review denied, 361 N.C. 350, 645 S.E.2d
766 (2007).]
b. Provision in a premarital agreement by which each party waived and released any
right to inherit from the other or to dissent from the other’s will prevented wife from
dissenting from husband’s will. [In re Estate of Pate, 119 N.C. App. 400, 459 S.E.2d 1
(rejecting wife’s argument that temporary cancellation of wedding plans after exe-
cution of the premarital agreement revoked the agreement), review denied, 341 N.C.
649, 462 S.E.2d 515 (1995).]
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c. e ability to control the disposition of property upon the dissolution of a marriage
appears to be the primary purpose of most, if not all, premarital agreements. [Harllee
v.Harllee, 151 N.C. App. 40, 565 S.E.2d 678 (2002).]
4. Modication or elimination of spousal support. [G.S.52B-4(a)(4); 50-16.6(b), amended
by S.L. 2013-140, §2, eective June 19, 2013, which provides that alimony, postseparation
support, and attorney fees may be barred by an express provision in a premarital agree-
ment, separation agreement, or marital contract made pursuant to G.S.52-10(a1) so
long as the agreement is performed; see further discussion in Section I.E.2, below.] But
regardless of agreement, a court may require a supporting spouse to support a dependent
spouse if provisions in the agreement cause the dependent spouse to be eligible for public
assistance upon separation or divorce. [G.S.52B-7(b), discussed in Section I.E.2.b, below.]
5. e making of a will, trust, or other arrangement to carry out the agreement. [G.S.
52B-4(a)(5).]
6. Ownership rights in and disposition of the death benet from a life insurance policy.
[G.S.52B-4(a)(6).]
a. If the parties contract as to the ownership rights in and disposition of the death ben-
et from a life insurance policy and the provisions of the premarital contract conict
with the provisions of the life insurance policy, the life insurance policy prevails with
respect to payment by the insurance company but not with respect to the rights of
the parties to the premarital agreement. [North Carolina Comment, G.S.52B-4.]
7. e choice of law governing the construction of the agreement. [G.S.52B-4(a)(7).]
8. Any other matter, including personal rights and obligations, not in violation of public
policy or a criminal statute. [G.S.52B-4(a)(8).]
C. Construing a Premarital Agreement
1. Contract construction rules apply to premarital agreements.
a. In general, the principles of construction applicable to contracts also apply to pre-
marital agreements. [Muchmore v.Trask, 192 N.C. App. 635, 666 S.E.2d 667 (2008),
review improvidently allowed, 363 N.C. 742, 686 S.E.2d 151 (2009); Cooke v.Cooke,
185 N.C. App. 101, 647 S.E.2d 662 (citing Harllee v.Harllee, 151 N.C. App. 40, 565
S.E.2d 678 (2002)), review denied, 362 N.C. 175, 657 S.E.2d 888 (2008); McIntyre
v.McIntyre, 188 N.C. App. 26, 654 S.E.2d 798 (citing Howell v.Landry, 96 N.C. App.
516, 386 S.E.2d 610 (1989)), a ’d per curiam, 362 N.C. 503, 666 S.E.2d 749 (2008);
Brown v.Ginn, 181 N.C. App. 563, 640 S.E.2d 787, review denied, 361 N.C. 350, 645
S.E.2d 766 (2007); Harllee; Turner v.Turner, 242 N.C. 533, 89 S.E.2d 245 (1955)
(principles of construction applicable to antenuptial agreements and to contracts
generally are the same).]
b. In construing premarital agreements executed after July 1, 1987, in addition to gen-
eral contract principles, the strict requirements of the Uniform Act must be consid-
ered. [Huntley v.Huntley, 140 N.C. App. 749, 538 S.E.2d 239 (2000).]
c. Premarital agreements “are to be construed liberally so as to secure the protection
of those interests which from the very nature of the instrument it must be presumed
were thereby intended to be secured.” [Harllee v.Harllee, 151 N.C. App. 40, 46–47,
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565 S.E.2d 678, 682 (2002) (quoting Stewart v.Stewart, 222 N.C. 387, 392, 23 S.E.2d
306, 309 (1942)).]
d. Contracts are interpreted according to the intent of the parties, which is determined
by examining the plain language of the contract. [Brown v.Ginn, 181 N.C. App. 563,
640 S.E.2d 787, review denied, 361 N.C. 350, 645 S.E.2d 766 (2007).]
e. “[A]bsent fraud or oppression...parties to a contract have an armative duty to
read and understand a written contract before signing it.” [Kornegay v.Robinson, 176
N.C. App. 19, 30, 625 S.E.2d 805, 812 (Tyson, J., dissenting) (quoting Roberts v.Rob-
erts, 173 N.C. App. 354, 357, 618 S.E.2d 761, 764 (2005)), rev’d per curiam for reasons
stated in dissenting opinion, 360 N.C. 640, 637 S.E.2d 516 (2006).]
f. e court presumes that the parties intended what the contract language clearly
expresses and construes the contract “to mean what on its face it purports to
mean.” [Kornegay v.Robinson, 176 N.C. App. 19, 30, 625 S.E.2d 805, 812 (Tyson, J.,
dissenting) (quoting Roberts v.Roberts, 173 N.C. App. 354, 357, 618 S.E.2d 761, 764
(2005)), rev’d per curiam for reasons stated in dissenting opinion, 360 N.C. 640, 637
S.E.2d 516 (2006).]
2. Choice of law.
a. Unless the premarital agreement at issue clearly indicates a contrary intent, “the
construction is to be governed by the law of the place where it is intended to be
performed.” [Muchmore v.Trask, 192 N.C. App. 635, 642, 666 S.E.2d 667, 671 (2008)
(emphasis in original) (quoting Hicks v.Skinner, 71 N.C. 539, 545 (1874)), review
improvidently allowed, 363 N.C. 742, 686 S.E.2d 151 (2009).]
b. e law of the state where a marital contract, including a premarital agreement, is
formed should govern its validity. [Muchmore v.Trask, 192 N.C. App. 635, 666 S.E.2d
667 (2008) (citing Morton v.Morton, 76 N.C. App. 295, 332 S.E.2d 736 (1985)), review
improvidently allowed, 363 N.C. 742, 686 S.E.2d 151 (2009).]
3. Use of extrinsic evidence.
a. Extrinsic evidence may be consulted when the plain language of the contract is
ambiguous. [Brown v.Ginn, 181 N.C. App. 563, 640 S.E.2d 787 (citing Tyndall-Taylor
v.Tyndall, 157 N.C. App. 689, 580 S.E.2d 58 (2003)), review denied, 361 N.C. 350, 645
S.E.2d 766 (2007).]
b. See Section IV.E.2, below.
4. Specic cases.
a. Waiver of rights.
i. Waiver of spousal support in premarital agreement executed in California
was valid and enforceable in North Carolina pursuant to California law, even
though at the time the agreement was executed in California, a waiver of ali-
mony violated North Carolina public policy. [Muchmore v.Trask, 192 N.C. App.
635, 666 S.E.2d 667 (2008) (a waiver of alimony was valid in California when
the agreement was executed and was valid in North Carolina when the parties
relocated here; that agreements to waive alimony were against North Carolina
public policy when this agreement was executed in California did not prevent
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enforcement in North Carolina of the waiver), review improvidently allowed, 363
N.C. 742, 686 S.E.2d 151 (2009).]
ii. Provision in property and separation agreement, approved by South Carolina
family court, whereby each party relinquished “all right, claim or interest...that
she or he may acquire in the property or estate of the other, including without
limitation...the right to receive proceeds, funds or property as a beneciary
under any life insurance policies” did not require plan administrator to distrib-
ute life insurance benet to contingent beneciary, instead of husband, upon
wife’s death. Even though waiver was clear, plan documents controlled disburse-
ment of benets, so when wife had not changed her beneciary designation,
plan administrator properly paid proceeds to husband as named beneciary.
[Boyd v.Metro. Life Ins. Co., 636 F.3d 138, 139 (4th Cir. 2011) (citing Kennedy
v.Plan Adm’r for DuPont Sav.& Inv.Plan, 555 U.S. 285, 129 S. Ct. 865 (2009)).]
iii. When wife agreed in premarital agreement to “waive and release all statutory
rights that she has, or may have, in the property or estate of” her husband, wife
was not entitled to retain payments, made to her under federal law after hus-
band’s death, for husband’s tobacco allotments. [Brown v.Ginn, 181 N.C. App.
563, 564, 640 S.E.2d 787, 788 (quoted language, and other provisions in the
premarital agreement, established wife’s waiver of her right to the tobacco pay-
ments), review denied, 361 N.C. 350, 645 S.E.2d 766 (2007).]
b. In determining the value of the marital residence pursuant to a formula set out in
the premarital agreement, the phrase allowing deduction of the “outstanding indebt-
edness on” the marital residence referred only to debt secured by the residence and
not to debt incurred by the husband to purchase the property not secured by the
residence. [Roberts v.Roberts, 173 N.C. App. 354, 618 S.E.2d 761 (2005) (husband not
allowed to deduct sum he borrowed against his separately owned brokerage account
for a down payment on the marital residence; amount husband borrowed was
secured by the stocks and other assets in his account).]
c. Language in premarital agreement that husband would, as part of the consideration
for the agreement, pay $10,000 to the wife on the day of the marriage was construed
as a promise, not a condition precedent to the eectiveness of the agreement; agree-
ment enforceable even though payment never made. [Harllee v.Harllee, 151 N.C.
App. 40, 565 S.E.2d 678 (2002) (agreement governed by G.S.52-10).]
D. Modifying or Revoking a Premarital Agreement
1. Prior to the Uniform Act, the general rule was that premarital agreements could be
amended or rescinded after marriage if the parties fully and freely consented to do so.
[Turner v.Turner, 242 N.C. 533, 538, 89 S.E.2d 245, 249 (1955) (stating that “[a]ntenuptial
contracts may during coverture be modied or rescinded with the full and free consent of
the parties thereto, provided the rights of third parties have not intervened”).]
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2. e Uniform Act provides that a premarital agreement may be amended or revoked
after marriage only by a written agreement signed by the parties. [G.S.52B-6; Huntley
v.Huntley, 140 N.C. App. 749, 538 S.E.2d 239 (2000) (considering G.S.52B-6 for the rst
time, court of appeals concluded that the statute requires a signed, written agreement to
amend or revoke a premarital agreement; trial court erred when it found that conduct
of the parties after marriage rescinded the agreement). See also Muchmore v.Trask, 192
N.C. App. 635, 666 S.E.2d 667 (2008) (applying similar California law, when neither party
claimed that a written revocation existed, plainti’s allegations that defendant physically
revoked the agreement by tearing it up were immaterial), review improvidently allowed,
363 N.C. 742, 686 S.E.2d 151 (2009).]
3. e Uniform Act is silent as to the amendment or revocation of a premarital agreement
prior to marriage.
a. Because the Uniform Act is silent on this point, a court could apply general con-
tract principles to determine whether temporary cancellation of wedding plans after
execution of a premarital agreement revoked the agreement. [In re Estate of Pate,
119 N.C. App. 400, 459 S.E.2d 1 (without discussing the Uniform Act, when parties
subsequently reconciled and married, premarital agreement that did not specify any
date upon which the parties were to be married but contemplated marriage “some-
time in the near future” was valid; applying contract principles, court concluded that
wedding some seven months after execution of the agreement occurred within a
reasonable time period), review denied, 341 N.C. 649, 462 S.E.2d 515 (1995); Hunt-
ley v.Huntley, 140 N.C. App. 749, 538 S.E.2d 239 (2000) (noting that application of
general contract principles was appropriate in Pate since Uniform Act was silent on
revocation of a premarital agreement before marriage).]
4. No consideration is required for amendment or revocation of a premarital agreement.
[G.S.52B-6.]
5. Reconciliation.
a. In the absence of contrary provisions in an antenuptial agreement, or of special stat-
utory provisions, a separation and reconciliation between husband and wife will not
aect or extinguish property rights under such an agreement. [Turner v.Turner, 242
N.C. 533, 89 S.E.2d 245 (1955).] See Section IV.H, below, for more on reconciliation.
See G.S.52B-4(a)(3) (allowing parties to contract with respect to “the occurrence or
nonoccurrence of any other event”).
6. Application of estoppel principles to purported revocation.
a. Defendant was not equitably estopped from enforcing the parties’ premarital agree-
ment when plainti failed to show that she relied on defendant’s alleged revocation
(tearing up the agreement in her presence). [Muchmore v.Trask, 192 N.C. App. 635,
666 S.E.2d 667 (2008), review improvidently allowed, 363 N.C. 742, 686 S.E.2d 151
(2009).]
E. Eect of a Premarital Agreement on Various Rights or Interests of the Parties
1. Eect on equitable distribution.
a. A valid premarital agreement does not automatically bar any and all claims pursu-
ant to the equitable distribution (ED) statute. Only premarital agreements that fully
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dispose of the parties’ property rights bar subsequent actions for ED. [McKissick
v.McKissick, 129 N.C. App. 252, 497 S.E.2d 711 (1998) (citing Hagler v.Hagler, 319
N.C. 287, 354 S.E.2d 228 (1987)). See also Prevatte v.Prevatte, 104 N.C. App. 777, 411
S.E.2d 386 (1991) (a general release of property rights in a premarital agreement was
sucient to bar ED).]
b. Premarital agreement that provided that each party “releases” certain rights, includ-
ing “all marital rights in the real estate and personal property” of the other spouse,
and that each party would be able to purchase, sell, encumber, dispose of, and convey
real and personal property throughout the marriage as though unmarried and with-
out the other’s consent, did not waive either party’s right to ED; rather, the agreement
was a “free trader” agreement that allowed each spouse to buy and sell property with-
out the consent or interference of the other during the marriage. [McIntyre v.McIn-
tyre, 188 N.C. App. 26, 28, 654 S.E.2d 798, 799 (1986 agreement did not specically
reference property that might be acquired during marriage, did not expressly waive
ED, and did not dispose of property in the event of divorce) (Uniform Act not appli-
cable), a’d per curiam, 362 N.C. 503, 666 S.E.2d 749 (2008).]
c. Until the court enters an order nding that the agreement bars ED, the court has
jurisdiction to enter preliminary orders pursuant to the ED statute. [McKissick
v.McKissick, 129 N.C. App. 252, 497 S.E.2d 711 (1998) (trial court authorized to
enter an order pursuant to G.S.50-20(i) requiring husband to return wife’s separate
property, even though trial court later determined that ED was barred by premarital
agreement; appellate court did not address whether trial court would have had juris-
diction to enter the order under G.S.50-20(i) after dismissal of the ED claim).]
d. It is error to order ED when a premarital agreement that specically waives right to
ED remains valid and enforceable. [Huntley v.Huntley, 140 N.C. App. 749, 538 S.E.2d
239 (2000) (trial court erred in nding that the parties’ conduct following execution
of the agreement resulted in its rescission).]
e. Property owned by the parties that is not covered by the premarital agreement is to
be distributed pursuant to the Equitable Distribution Act. [See Harllee v.Harllee, 151
N.C. App. 40, 565 S.E.2d 678 (2002) (remanding for ED of any properties the parties
might have owned that were not covered by the premarital agreement).]
2. Eect on postseparation support and alimony.
a. Alimony, postseparation support, and attorney fees may be barred by an express
provision in a valid premarital agreement, separation agreement, or marital con-
tract made pursuant to G.S.52-10(a1) so long as the agreement is performed.
[G.S.50-16.6(b), amended by S.L. 2013-140, §2, eective June 19, 2013.]
i. See Section IV.F.2, below, for more on what constitutes a valid waiver of alimony.
ii. Alimony could not be waived in an agreement executed before adoption of the
Uniform Act in 1987. [Howell v.Landry, 96 N.C. App. 516, 386 S.E.2d 610 (1989)
(provisions in a 1979 premarital agreement purporting to waive alimony unen-
forceable and void as against public policy), review denied, 326 N.C. 482, 392
S.E.2d 90 (1990).]
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b. A court may require a supporting spouse to support a dependent spouse if spousal
support provisions in a premarital agreement cause the dependent spouse to be eligi-
ble for public assistance upon separation or divorce. [G.S.52B-7(b).]
i. e court must nd that grounds exist for
(a) Alimony under G.S.50-16.3A or
(b) Postseparation support under G.S.50-16.2A. [G.S.52B-7(b).]
ii. e court may order support only to the extent necessary to avoid eligibility for
public assistance. [G.S.52B-7(b).]
c. Provision in premarital agreement that waived “any right or claim of any kind, char-
acter, or nature whatsoever” of a spouse pursuant to G.S.Chapter50 constituted
a valid waiver of the wife’s right to postseparation support and alimony. [Stewart
v.Stewart, 141 N.C. App. 236, 240, 541 S.E.2d 209, 212 (2000) (language that specif-
ically and unambiguously waived all rights pursuant to Chapter50, which encom-
passes postseparation support and alimony, was suciently express to constitute a
valid waiver of alimony).]
3. Eect on child support.
a. e right of a child to child support may not be adversely aected by a premarital
agreement. [G.S.52B-4(b).]
4. Eect on rights in the estate of a decedent.
a. Wife had no right to dissent from the will of her husband when she had in a premar-
ital agreement waived and released any right to inherit from him or to dissent from
his will. [In re Estate of Pate, 119 N.C. App. 400, 459 S.E.2d 1, review denied, 341 N.C.
649, 462 S.E.2d 515 (1995).]
5. Eect on interest in a retirement account.
a. Unambiguous language in premarital agreement providing that the parties’ retire-
ment accounts were to remain their separate property was a valid waiver under state
law, as well as under the federal Employee Retirement Income Security Act (ERISA),
of wife’s interest in husband’s retirement account. [Stewart v.Stewart, 141 N.C. App.
236, 541 S.E.2d 209 (2000) (holding that ERISA’s spousal waiver restrictions apply to
waivers of survivor benets but do not apply to waivers of an interest in a spouse’s
retirement account). But cf. Kennedy v.Plan Adm’r for DuPont Sav.& Inv.Plan, 555
U.S. 285, 129 S. Ct. 865 (2009) (even if rights are waived, ex-spouse will receive death
benets if ex-spouse is designated as the beneciary in plan documents at time bene-
ts are paid).]
6. Eect on attorney fees.
a. G.S.50-16.6(b), amended by S.L. 2013-140, §2, eective June 19, 2013, provides that
attorney fees may be barred by an express provision in a premarital agreement, sepa-
ration agreement, or marital contract made pursuant to G.S.52-10(a1) so long as the
agreement is performed.
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7. Eect on certain assets.
a. Medical license.
i. Medical license owned by husband before the marriage, and any appreciation
thereof during the marriage, was husband’s separate property pursuant to a
premarital agreement that provided that each of the parties retained title to
property owned by them on the date the premarital agreement was executed,
as well as any increases in that property. [Stewart v.Stewart, 141 N.C. App. 236,
541 S.E.2d 209 (2000).]
b. Interest in a professional practice.
i. Husband’s interest in a medical practice was husband’s separate property when
parties specically acknowledged in a premarital agreement that husband “is
the owner” and that the interest “shall remain the sole and separate property”
of husband; same language supported conclusion that any appreciation of that
interest during the marriage was husband’s separate property. [Stewart v.Stew-
art, 141 N.C. App. 236, 259, 541 S.E.2d 209, 218 (2000).]
F. Enforcing a Premarital Agreement
1. Generally.
a. G.S.52B-7 sets forth the conditions that a party must prove to avoid enforcement of
a premarital agreement. ese conditions generally concern inequitable conditions
surrounding the execution of the agreement, such as voluntariness and unconsciona-
bility. [Huntley v.Huntley, 140 N.C. App. 749, 538 S.E.2d 239 (2000).]
b. Premarital agreements, like postmarital agreements, are generally formed within a
condential relationship. “Accordingly, transactions between such parties . . . must be
free of fraud, undue inuence and duress, and...must also be fair and reasonable.”
[Kornegay v.Robinson, 176 N.C. App. 19, 29, 625 S.E.2d 805, 811 (Tyson, J., dissent-
ing) (quoting Howell v.Landry, 96 N.C. App. 516, 524, 386 S.E.2d 610, 615 (1989)),
rev’d per curiam for reasons stated in dissenting opinion, 360 N.C. 640, 637 S.E.2d
516 (2006).] See Section IV.I.4, below, for more on defenses related to execution of an
agreement.
c. Specic performance may be used to enforce a premarital agreement. [Muchmore
v.Trask, 192 N.C. App. 635, 666 S.E.2d 667 (2008), review improvidently allowed, 363
N.C. 742, 686 S.E.2d 151 (2009); Blackburn v.Bugg, 723 S.E.2d 585 (N.C. Ct. App.
2012) (unpublished) (specic performance ordered of alimony provisions in a pre-
marital agreement).]
d. In addition to proving breach of contract, a party seeking specic performance must
allege and prove that the remedy at law is inadequate, the defendant can perform
some or all of his or her obligations, and the moving party has performed his or her
obligations. [Reeder v.Carter, 226 N.C. App. 270, 740 S.E.2d 913 (2013) (citing 3 Lee’s
North Carolina Family Law §14.35 (5th ed. 2002), and Cavenaugh v.Cavenaugh, 317
N.C. 652, 347 S.E.2d 19 (1986)).]
e. An order of specic performance is enforceable by contempt. [Blackburn v.Bugg,
723 S.E.2d 585 (N.C. Ct. App. 2012) (unpublished) (specic performance ordered of
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alimony provisions in a premarital agreement; in later proceeding for contempt for
failure to increase alimony annually based on Consumer Price Index (CPI), as pro-
vided in the agreement, trial court properly admitted into evidence computer print-
outs from a U.S. Department of Labor website showing CPI increases, which were
used to show amount of CPI increases owed by defendant; noting that CPI informa-
tion set forth in the computer printouts was public information readily available and
subject to judicial notice).] For more on specic performance, see Section IV.I.2.g,
below.
2. A premarital agreement is not enforceable if a party proves that
a. e party did not execute the agreement voluntarily or
b. e agreement was unconscionable when it was executed and, before execution of
the agreement, the party
i. Was not provided a fair and reasonable disclosure of the property or nancial
obligations of the other party;
ii. Did not voluntarily and expressly waive, in writing, any right to disclosure of the
property or nancial obligations of the other party beyond the disclosure pro-
vided; and
iii. Did not have, or reasonably could not have had, an adequate knowledge of the
property or nancial obligations of the other party. [G.S.52B-7(a).]
3. Voluntariness.
a. Where wife admitted both in the premarital agreement and in a deposition that
she voluntarily signed the agreement, there was no genuine issue of material fact
as to voluntariness. [Kornegay v.Robinson, 360 N.C. 640, 637 S.E.2d 516 (rejecting
wife’s argument that execution not voluntary because she lacked legal counsel or an
opportunity to obtain counsel before signing the agreement, because she misunder-
stood agreement’s application upon husband’s death, because she signed agreement
within minutes of its presentation without reading it, and because the agreement
was “unfair” based upon the current value of husband’s assets), rev’g per curiam
for reasons stated in dissenting opinion in 176 N.C. App. 19, 625 S.E.2d 805 (2006)
(Tyson, J., dissenting).]
4. Failure to disclose.
a. Before enactment of the Uniform Act, the failure to fully disclose one’s nancial status
was grounds for invalidating an antenuptial agreement. [Tiryakian v.Tiryakian, 91
N.C. App. 128, 370 S.E.2d 852 (1988) (premarital agreement entered into before
eective date of the Uniform Act) (opinion recognized the condential relationship
of persons about to marry and the corresponding armative duty on the part of each
prospective spouse to fully disclose his or her nancial status).]
b. Wife unequivocally waived the right to any additional disclosure of her husband’s
assets pursuant to premarital agreement that provided that each party “acknowledges
that the other has made a full and fair disclosure...[of] incomes, assets, debts, liabil-
ities, and responsibilities[,]...[is] informed as to, and has adequate knowledge of, all
real and personal property owned and possessed by the other party[, and]...[is] sat-
ised with the extent of their disclosure....” [Player v.Player, 178 N.C. App. 562, 631
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S.E.2d 893 (2006) (unpublished) (not paginated on Westlaw) (summary judgment in
favor of husband armed on constructive fraud claim).]
c. G.S.52B-7 appears to require that an agreement be unconscionable before it can be
invalidated due to a failure to disclose. [See Kornegay v.Robinson, 176 N.C. App. 19,
32, 625 S.E.2d 805, 813 (Tyson, J., dissenting) (wife’s alleged lack of knowledge about
husband’s assets at time premarital agreement was executed did not create a genuine
issue of material fact when the agreement stated and wife admitted that she volun-
tarily signed the agreement, that the agreement was fair and equitable, and that it
was not the result of duress or undue inuence; “the fact that the decedent’s assets
grew during the marriage does not make the agreement unconscionable or unfair”),
rev’d per curiam for reasons stated in dissenting opinion, 360 N.C. 640, 637 S.E.2d 516
(2006).]
d. For discussion on the failure to disclose in the context of a separation agreement, see
Section IV.I.4.h, below.
5. Unconscionability.
a. A premarital agreement, whose terms applied equally to both parties and recognized
that both parties had children from previous marriages and possessed separate prop-
erty, was not substantively unconscionable when it waived all marital rights, includ-
ing intestacy rights, but permitted each spouse to make specic devises, bequests,
and legacies to the other. [Kornegay v.Robinson, 360 N.C. 640, 637 S.E.2d 516, rev’g
per curiam for reasons stated in dissenting opinion in 176 N.C. App. 19, 625 S.E.2d
805 (2006) (Tyson, J., writing dissenting opinion but concurring with majority opin-
ion that agreement at issue was not unconscionable).]
6. Statute of limitations; other defenses.
a. Any statute of limitations applicable to an action asserting a claim for relief under a
premarital agreement is tolled during the marriage of the parties. [G.S.52B-9.]
b. Equitable defenses limiting the time for enforcement, including laches and estoppel,
are available to either party. [G.S.52B-9.]
II. Postnuptial Agreements
A. Generally
1. A postnuptial agreement is an agreement between spouses entered into during marriage.
2. ere are two broad categories of postnuptial agreements.
a. Contracts made during the marriage and before separation and not in contemplation
of separation. Authorized by G.S.52-10 and 50-20(d) (these contracts can address
property rights but cannot address support rights, as discussed below) and
b. Contracts made during separation or in anticipation of imminent separation (these
contracts include separation agreements and agreements entered into in contempla-
tion of reconciliation and can address both property and support rights, as provided
below).
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3. ere are two categories of contracts made during separation or in anticipation of
separation.
a. Separation agreements are contracts entered into with the intent to live separate and
apart and entered for the purpose of settling rights, obligations, and issues arising
from the marriage. [Authorized by G.S.52-10.1 and 50-20(d).]
b. Other contracts between married spouses entered during separation not based on
the intent to live separate and apart; most common are agreements in anticipation of
reconciliation. [Authorized by G.S.52-10(a1) and 50-20(d).]
B. Requisites and Validity of Postnuptial Agreements
1. Statutes authorizing postnuptial agreements.
a. G.S.52-10(a).
i. G.S.52-10(a):
(a) Validates contracts between husbands and wives that are not inconsistent
with public policy;
(b) Allows married persons, or persons of “full age” about to be married, to
agree to release all property rights arising from the marriage, with or with-
out consideration; and
(c) Requires that contracts aecting real estate, or income thereof for more
than three years, entered during the marriage be in writing and acknowl-
edged by both parties before a certifying ocer. [See Kelley v. Kelley, 798
S.E.2d 771 (N.C. Ct. App. 2017) (failure to comply with acknowledgment
required by G.S. 52-10.1 rendered agreement void ab initio).]
ii. G.S.52-10(a) authorizes contracts that completely settle property rights arising
out of marriage. [Small v.Small, 93 N.C. App. 614, 379 S.E.2d 273 (1989) (citing
Blount v.Blount, 72 N.C. App. 193, 323 S.E.2d 738 (1984)), review denied, 313
N.C. 506, 329 S.E.2d 389 (1985).]
iii. Except as allowed by G.S.52-10(a1), discussed in Section II.B.1.c, below, agree-
ments entered into under G.S.52-10 cannot aect support rights, only rights
in property. [Eubanks v.Eubanks, 273 N.C. 189, 195, 159 S.E.2d 562, 567 (1968)
(reciting holding in Motley v.Motley, 255 N.C. 190, 193, 120 S.E. 2d 422, 424
(1961), that G.S.52-10 relates to the release of an interest in property, but “has
no bearing whatsoever” on the right of a party to support); Williams v.Williams,
120 N.C. App. 707, 463 S.E.2d 815 (1995) (citing Eubanks), a ’d per curiam,
343 N.C. 299, 469 S.E.2d 553 (1996); Sluder v.Sluder, 198 N.C. App. 401, 679
S.E.2d 435 (2009) (citing Eubanks) (agreement executed pursuant to G.S.52-10
addresses rights in property and may be entered into at any time during
marriage).]
iv. A contract under G.S.52-10 may be entered into at any time during marriage,
not only in contemplation of separation or divorce. [Williams v.Williams, 120
N.C. App. 707, 463 S.E.2d 815 (1995), a’d per curiam, 343 N.C. 299, 469 S.E.2d
553 (1996).]
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b. G.S.50-20(d).
i. G.S.50-20(d) provides that before, during, or after marriage, the parties
may provide by agreement, executed and acknowledged in accordance with
G.S.52-10 and 52-10.1, for the distribution of marital or divisible property,
or both. [For a case interpreting G.S.50-20(d), see Bungton v.Bungton, 69
N.C. App. 483, 488, 317 S.E.2d 97, 100 (1984) (parties may enter into a writ-
ten property settlement agreement “[b]efore, during or after marriage” so
long as the agreement is duly executed and acknowledged in accordance with
G.S.52-10 and 52-10.1 or is valid in the jurisdiction where executed; by enacting
G.S.50-20(d), “the General Assembly manifested a clear intent to change the
former rule which required the actual separation of the parties to a marriage . . .
for a property settlement to be eective between spouses”).]
ii. A postnuptial agreement may bar equitable distribution (ED) even if executed
before adoption of the Equitable Distribution Act. [Small v.Small, 93 N.C. App.
614, 379 S.E.2d 273 (right to ED may be released even if release was executed
before the adoption of G.S.50-20(d)), review denied, 325 N.C. 273, 384 S.E.2d
519 (1989).]
iii. Separation agreements that waive all property rights bar ED. [See Blount
v.Blount, 72 N.C. App. 193, 323 S.E.2d 738 (1984) (general relinquishment of all
property rights in a 1976 separation agreement was a bar to ED even though the
agreement did not list property owned by husband; trial court’s determination
that a 1962 premarital agreement did not bar ED, while correct, did not preclude
determination that 1976 separation agreement barred ED), review denied, 313
N.C. 506, 329 S.E.2d 389 (1985); Hartman v.Hartman, 80 N.C. App. 452, 343
S.E.2d 11 (1986) (general waivers in separation agreement were sucient to bar
ED even though agreement made no reference to specic real property); Porter
v.Porter, 217 N.C. App. 629, 720 S.E.2d 778 (2011) (agreement executed in 1988,
in which parties relinquished and released all rights in each other’s real and per-
sonal property, barred ED even though parties reconciled following execution
of the agreement and lived together until their nal separation in 2005; 1988
agreement, incorporated in 2007 divorce judgment, provided that it remained in
eect if the parties reconciled unless otherwise provided by the parties in writ-
ing after reconciliation).]
iv. Agreements intended by the parties to be a full and nal distribution of all
property bar ED. [See G.S.50-20(d) (properly executed agreements providing
for distribution of marital or divisible property shall be binding on the parties);
Hagler v.Hagler, 319 N.C. 287, 354 S.E.2d 228 (1987) (comprehensive property
settlement provisions in separation agreement established parties’ intent to fully
dispose of their respective property rights and were sucient to bar ED even
though agreement did not mention ED); Anderson v.Anderson, 145 N.C. App.
453, 550 S.E.2d 266 (2001) (agreement clearly intended to be a full settlement
even though it did not divide husband’s military pension).]
v. Agreements regarding property entered during the marriage are valid and
enforceable even if not entered in contemplation of separation. [See Dawbarn
v.Dawbarn, 175 N.C. App. 712, 625 S.E.2d 186 (2006) (transfer of property by
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husband to wife during the marriage pursuant to terms of a postnuptial contract
was a good faith eort on husband’s part to stay in, and continue to work on, the
marriage after his admission of an extramarital aair and, therefore, was valid).]
c. G.S.52-10(a1).
i. Eective June 19, 2013, G.S.52-10(a1) species that a contract between a hus-
band and wife made during a period of separation to waive, release, or establish
rights and obligations to postseparation support, alimony, or spousal support is
valid and not inconsistent with public policy.
ii. Any such agreement made during separation relating to support rights will
remain valid following a period of reconciliation and subsequent separation if
(a) e contract is in writing;
(b) e provision waiving the rights or obligations is clearly stated in the con-
tract; and
(c) e contract was acknowledged by both parties before a certifying ocer.
[G.S.52-10(a1). See Kelley v. Kelley, 798 S.E.2d 771 (N.C. Ct. App. 2017)
(failure to comply with acknowledgment required by G.S. 52-10.1 rendered
agreement void ab initio).]
d. G.S.52-10.1.
i. G.S.52-10.1 authorizes married couples to execute separation agreements not
inconsistent with public policy. See Section II.B.2, below.
ii. A separation agreement is a contract entered with the intent to live separate and
apart forever. [Williams v.Williams, 120 N.C. App. 707, 463 S.E.2d 815 (1995)
(agreement regarding reconciliation executed during separation was not a sepa-
ration agreement), a’d per curiam, 343 N.C. 299, 469 S.E.2d 553 (1996).]
iii. A separation agreement must be in writing and acknowledged by both parties
before a certifying ocer as dened in G.S.52-10(b). Such certifying ocer may
not be a party to the contract. [G.S.52-10.1. See Kelley v. Kelley, 798 S.E.2d 771
(N.C. Ct. App. 2017) (failure to comply with acknowledgment required by G.S.
52-10.1 rendered agreement void ab initio).]
iv. While property settlement agreements can be executed at any time before,
during, or after marriage, a separation agreement is valid only if executed while
the parties are separated or planning to live separate and apart. [See Section
IV.C.1.a, below; Bungton v.Bungton, 69 N.C. App. 483, 488, 317 S.E.2d 97,
100 (1984) (by enacting G.S. 50-20(d), “the General Assembly manifested a
clear intent to change the former rule which required the actual separation of
the parties to a marriage . . . for a property settlement to be eective between
spouses”).]
2. Agreements must not violate public policy.
a. A party cannot waive alimony in a postnuptial agreement unless it is a separa-
tion agreement or, for agreements entered on or after June 19, 2013, unless the
waiver is made in an agreement executed during a period of separation pursuant to
G.S.52-10(a1).
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i. An agreement between a husband and wife living together and not contemplat-
ing imminent separation that purports to quantify or limit the duty of support is
void as against public policy. [Gray v.Snyder, 704 F.2d 709 (4th Cir. 1983) (under
North Carolina law, spouses must separate or intend to separate immediately
to execute valid support waiver under G.S.52-10.1); Motley v.Motley, 255 N.C.
190, 120 S.E.2d 422 (1961) (agreement purporting to waive alimony was exe-
cuted before marriage, but opinion discusses duty of support that comes into
existence the “moment” parties are married); Williams v.Williams, 120 N.C.
App. 707, 463 S.E.2d 815 (1995) (agreement executed while parties were living
separate and apart but reciting that parties were considering a resumption of
marital relations and providing for wife’s support throughout the marriage and
upon subsequent separation was a promise or a contract looking to the future
separation of a husband and wife and was void against public policy), a’d per
curiam, 343 N.C. 299, 469 S.E.2d 553 (1996). See also In re Estate of Tucci, 94
N.C. App. 428, 380 S.E.2d 782 (1989) (recognizing that the supreme court in
Motley established as public policy that married parties may not shirk their
spousal duties of support and alimony and yet live together as a married couple),
a’d per curiam, 326 N.C. 359, 388 S.E.2d 768 (1990).]
b. While a contract executed while parties are living together or while separated which
attempts to waive or quantify support rights and obligations while the parties live
together is void as against public policy, [See Section II.B.2.a.i, immediately above.]
G.S.52-10(a1) allows contracts executed during a period of separation to waive or
quantify support rights for any future separation. ese agreements, made in con-
templation of reconciliation rather than separation, can dene support rights and
obligations of the parties following any subsequent separation. is provision applies
only to contracts entered on or after June 19, 2013.
c. e parties may by property settlement divide their real and personal property at any
time, before, during or after marriage without violating public policy as long as the
agreement does not encourage the parties to separate or provide an inducement to
end the marriage.
i. In general, public policy “is not oended by permitting...spouses to execute
a complete settlement of all spousal interests in each other’s real and personal
property and yet live together.” [Dawbarn v.Dawbarn, 175 N.C. App. 712,
712–13, 625 S.E.2d 186, 188 (2006) (quoting In re Estate of Tucci, 94 N.C. App.
428, 438, 380 S.E.2d 782, 788 (1989)).]
ii. Postnuptial agreement executed during the marriage that transferred property
to wife upon signing did not encourage the parties to separate and thus did not
violate public policy and was enforceable. [Dawbarn v.Dawbarn, 175 N.C. App.
712, 625 S.E.2d 186 (2006) (transfer of property worth approximately $850,000
eight years before separation was intended as a good faith eort on the hus-
band’s part to stay in, and continue to work on, the marriage after his admission
of an extramarital aair and therefore was valid).]
iii. However, when an agreement provides an economic incentive to leave the mar-
riage, it is void as against public policy. [Dawbarn v.Dawbarn, 175 N.C. App.
712, 625 S.E.2d 186 (2006) (citing Matthews v.Matthews, 2 N.C. App. 143, 162
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S.E.2d 697 (1968)). See also Williams v.Williams, 120 N.C. App. 707, 463 S.E.2d
815 (1995) (recognizing that contracts between spouses that conict with public
policy are void), a ’d per curiam, 343 N.C. 299, 469 S.E.2d 553 (1996).]
iv. Postnupital agreement wherein husband promised that if he ever left wife,
everything he had would be hers was void as against public policy for providing
an economic inducement to leave the marriage. [Matthews v.Matthews, 2 N.C.
App. 143, 162 S.E.2d 697 (1968) (partition action).]
v. Postnuptial agreement, executed three years after separation and reciting that
parties were considering reconciliation, contained paragraph that violated
public policy by providing for wife’s receipt of alimony during reconciliation and
upon a subsequent separation. [Williams v.Williams, 120 N.C. App. 707, 716,
463 S.E.2d 815, 821 (1995) (provision was “a promise looking towards a future
separation” and discouraged wife from putting forth a concerted eort to main-
tain the marriage because she would continue to receive alimony regardless of
whether the parties separated following reconciliation), a’d per curiam, 343
N.C. 299, 469 S.E.2d 553 (1996).]
d. Contracts providing that a reconciliation will not aect the terms of a property settle-
ment are not contrary to law or public policy. [Morrison v.Morrison, 102 N.C. App.
514, 402 S.E.2d 855 (1991).] For more on reconciliation, see Section IV.H, below. For
reconciliation agreements, see Section III, below.
C. Enforcement of a Postnuptial Agreement
1. A postnuptial agreement is enforced in the same manner as any other contract. For dis-
cussion of enforcement of a separation agreement, see Section IV.I, below.
2. “[A] postnuptial agreement, like any other contract, is not enforceable if it is ‘unconscio-
nable or procured by duress, coercion, or fraud.’ ” [Dawbarn v.Dawbarn, 175 N.C. App.
712, 716, 625 S.E.2d 186, 190 (2006) (quoting Knight v.Knight, 76 N.C. App. 395, 398, 333
S.E.2d 331, 333 (1985)) See Holton v. Holton, 813 S.E.2d 649, 656 (N.C. Ct. App. 2018)
(plainti’s complaint was sucient to state a claim for rescission of the contract where
plainti alleged that agreement was “unconscionable” and that she was “on post-surgery
medications that aected her memory and reasoning” at the time of execution). See
discussion on defenses to enforcement related to execution of a separation agreement in
Section IV.I.4, below.]
3. ree-year statute of limitation on claims of fraud, duress, and undue inuence began in
this case to run at the time the agreement was executed, because plainti was aware at the
time of defendant’s threat to sue the person with whom plainti had had an aair. When
this was some nine years before plainti led suit to set aside the agreement, those claims
were barred and summary judgment in defendant’s favor armed. [Dawbarn v.Dawbarn,
175 N.C. App. 712, 625 S.E.2d 186 (2006). See Holton v. Holton, 813 S.E.2d 649 (N.C. Ct.
App. 2018) (claim for rescission of contract has a three-year statute of limitation).]
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III. Reconciliation Agreements
A. Generally
1. Reconciliation agreements are a form of postnuptial agreement executed by married
persons during a period of separation with the intent to resume the marital relationship.
2. Both G.S.52-10(a1) and 50-20(d) authorize reconciling spouses to contract regarding
property rights unless that contract contains provisions which violate public policy.
Regarding public policy, see Matthews v.Matthews, 2 N.C. App. 143, 162 S.E.2d 697
(1968) (postnuptial agreement wherein husband promised that if he ever left wife, every-
thing he had would be hers was void as against public policy for providing an economic
inducement to leave the marriage). But cf. Dawbarn v.Dawbarn, 175 N.C. App. 712, 625
S.E.2d 186 (2006) (actual transfer of property by husband to wife during the marriage pur-
suant to terms of a postnuptial contract was a good faith eort on husband’s part to stay
in, and to continue to work on, the marriage after his admission of an extramarital aair
and, therefore, was valid).
3. In Williams v.Williams, 120 N.C. App. 707, 463 S.E.2d 815 (1995), a’d per curiam, 343
N.C. 299, 469 S.E.2d 553 (1996), the court held that an agreement, wherein the parties
indicated an intent to reconcile and agreed that if they should separate in the future hus-
band would pay wife alimony in amount of $500 per month, was void as against public
policy. However, for contracts entered into on or after June 19, 2013, parties who are sepa-
rated but contemplating reconciliation may provide for support rights or for the waiver of
support rights that will apply upon the occasion of any future separation. [G.S.52-10(a1).]
G.S.52-10(a1) does not authorize agreements regarding support rights and obligations
while the parties live together as husband and wife. [See In re Estate of Tucci, 94 N.C. App.
428, 380 S.E.2d 782 (1989) (recognizing that the supreme court in Motley v.Motley, 255
N.C. 190, 120 S.E.2d 422 (1961), established as public policy that married parties may
not shirk their spousal duties of support and alimony and yet live together as a married
couple), a’d per curiam, 326 N.C. 359, 388 S.E.2d 768 (1990).]
4. Eective June 19, 2013, G.S.52-10(a1) species that a contract between a husband and
wife made during a period of separation to waive, release, or establish rights and obliga-
tions to postseparation support, alimony, or spousal support is valid and not inconsistent
with public policy.
a. Any such agreement made during separation relating to support rights will remain
valid following a period of reconciliation and subsequent separation if:
i. e contract is in writing;
ii. e provision waiving the rights or obligations is clearly stated in the contract;
and
iii. e contract was acknowledged by both parties before a certifying ocer.
[G.S.52-10(a1). See Kelley v. Kelley, 798 S.E.2d 771 (N.C. Ct. App. 2017) (failure
to comply with acknowledgment required by G.S. 52-10.1 rendered agreement
void ab initio).]
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5. See Cheryl Howell, Does North Carolina Law Allow Reconciliation Agreements? UNC
S. G’: O C S B (Nov. 11, 2016), https://civil.sog.unc.edu/
does-north-carolina-law-allow-reconciliation-agreements.
IV. Separation Agreements
A. G.S.52-10.1
1. While G.S.52-10(a) allows married persons to contract about property rights at any time
during marriage, [See discussion in Section II.B.1, above.] G.S.52-10.1 authorizes married
persons to execute separation agreements not inconsistent with public policy, provided
that the agreement is in writing and acknowledged by both parties in front of a certifying
ocer. [Sluder v.Sluder, 198 N.C. App. 401, 679 S.E.2d 435 (2009) (agreement governed
by G.S.52-10.1 that was not acknowledged by either party before a certifying ocer was
invalid and not enforceable as a matter of law).]
2. A separation agreement is a contract between spouses wherein the parties agree to live
separate and apart and to provide for the settlement of issues arising out of the marriage.
A separation agreement must be executed while the parties are separated or when they
plan to separate shortly thereafter. [See Stegall v.Stegall, 100 N.C. App. 398, 397 S.E.2d
306 (1990) (a “pure” separation agreement is a contract wherein the husband and wife
agree to live apart and which generally provides for support for the dependent spouse
and minor children), review denied, 328 N.C. 274, 400 S.E.2d 461 (1991); Sluder v.Sluder,
198 N.C. App. 401, 679 S.E.2d 435 (2009) (citing Williams v.Williams, 120 N.C. App. 707,
463 S.E.2d 815 (1995)) (agreements between spouses under G.S.52-10.1 concern support
rights made in contemplation of separation); see Section IV.C.1.a, below, for more on sep-
aration agreements.]
3. Separation agreements serve the salutary purpose of enabling spouses to come to a mutu-
ally acceptable settlement of their nancial aairs, making them favored in this state.
[Hagler v.Hagler, 319 N.C. 287, 354 S.E.2d 228 (1987).]
4. An agreement that contained unambiguous language that declared that the parties were
not contemplating living “separate and apart forever” but, rather, were “on the verge of
resuming marital relations” was not a separation agreement under G.S.52.10.1 but was
a marital contract under G.S.52-10. [Williams v.Williams, 120 N.C. App. 707, 711, 463
S.E.2d 815, 818 (1995), a ’d per curiam, 343 N.C. 299, 469 S.E.2d 553 (1996).]
5. Any waivers or agreements made during the marriage concerning the right of spousal
support must be made in the context of a separation agreement and executed pursuant
to G.S.52-10.1 or made in a contract executed during a period of separation pursuant to
G.S.52-10(a1). [See discussion of “reconciliation agreements” in Section III, above; Napier
v.Napier, 135 N.C. App. 364, 520 S.E.2d 312 (1999) (citing Williams v.Williams, 120 N.C.
App. 707, 463 S.E.2d 815 (1995), a ’d per curiam, 343 N.C. 299, 469 S.E.2d 553 (1996))
(the validity of an agreement as it relates to the waiver of alimony is not to be judged in
the context of G.S.52-10, even though the “right of support” is in the nature of a property
right), review denied, 351 N.C. 358, 543 S.E.2d 132 (2000).] See Section IV.F.2, below, for
more on what constitutes a valid waiver of alimony.
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6. Separation agreements cannot be orally modied. [Jones v.Jones, 162 N.C. App. 134, 590
S.E.2d 308 (2004) (citing Greene v.Greene, 77 N.C. App. 821, 336 S.E.2d 430 (1985)) (an
attempt to orally modify a separation agreement fails to meet the formalities and require-
ments of G.S.52-10.1).]
B. Jurisdiction
1. Subject matter jurisdiction.
a. e district and superior courts have original concurrent jurisdiction. [G.S.7A-240.]
b. e district court is the proper court for actions to enforce or recover for breach of
a separation agreement or property settlement agreement, regardless of the amount
in controversy. [G.S.7A-244. See Small v.Parker, 184 N.C. App. 358, 646 S.E.2d 658
(2007) (superior court did not err in transferring case to district court after setting
aside consent order in case regarding the enforcement of a separation agreement).]
c. e district court lacked subject matter jurisdiction over a declaratory judgment
action to interpret a distributive award provision in a separation and property set-
tlement agreement because that agreement had been incorporated into a judgment.
[Fucito v.Francis, 175 N.C. App. 144, 622 S.E.2d 660 (2005) (while declaratory judg-
ment statute cannot be used to interpret a court order, the trial court may construe
or interpret the provision as part of an action for contempt). See also Williams
v.Williams, 120 N.C. App. 707, 711, 463 S.E.2d 815, 818 (1995) (agreement stating
that husband and wife were living separate and apart but that they “may desire” and
were “considering the resumption of cohabitation”, was considered to be a declaration
that the parties were not contemplating living separate and apart forever; it was not a
separation agreement), a’d per curiam, 343 N.C. 299, 469 S.E.2d 553 (1996).]
d. e trial court’s consideration of G.S.50-20 when it construed the provisions of an
incorporated separation agreement did not convert the contempt proceeding into an
action for equitable distribution, which the parties had waived, and did not divest the
court of subject matter jurisdiction. [Fucito v.Francis, 184 N.C. App. 377, 646 S.E.2d
441 (2007) (unpublished), review denied, 362 N.C. 234, 659 S.E.2d 440 (2008).]
e. A district court lacks jurisdiction to modify an unincorporated separation agree-
ment. [DeGree v.DeGree, 72 N.C. App. 668, 325 S.E.2d 36, review denied, 313 N.C.
598, 330 S.E.2d 607 (1985); Danai v.Danai, 166 N.C. App. 279, 603 S.E.2d 168 (2004)
(unpublished) (not paginated on Westlaw) (citing DeGree) (lack of jurisdiction not
cured by statement in separation agreement that “[t]his Agreement may be amended
and modied in whole or in part...by order of a Court of competent jurisdic-
tion”).] See Section IV.G.1.a, below, for more on modication of an unincorporated
agreement.
2. Personal jurisdiction.
a. Long-arm statute G.S.1-75.4(12), entitled “Marital Relationship,” applies to any
action under G.S.Chapter50 that arises out of the marital relationship within North
Carolina, notwithstanding subsequent departure from the state, if the other party to
the marital relationship continues to reside in this state.
b. Long-arm statute G.S.1-75.4(5)(c) grants in personam jurisdiction over a nonresi-
dent defendant in an action for arrearages due under a separation agreement entered
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into in North Carolina. [Pope v.Pope, 38 N.C. App. 328, 248 S.E.2d 260 (1978)
(thestatute governs separation agreements as “local contracts” and money payments
are “things of value” within the meaning of G.S.1-75.4(5)(c)).]
c. e exercise of statutory personal jurisdiction must meet the test of constitutional
due process, meaning that the defendant must have “minimum contacts” with North
Carolina. [Miller v.Kite, 313 N.C. 474, 329 S.E.2d 663 (1985).]
d. Factors to consider when determining whether a defendant has sucient minimum
contacts with North Carolina.
i. Quantity of defendant’s contacts with the state;
ii. e nature and quality of those contacts;
iii. e source and connection of the cause of action to the contacts;
iv. e interest of North Carolina in litigating the matter;
v. e convenience of the parties; and
vi. e interests of, and fairness to, the parties. [Shaner v.Shaner, 216 N.C. App.
409, 717 S.E.2d 66 (2011) (citing Filmar Racing, Inc. v.Stewart, 141 N.C. App.
668, 672, 541 S.E2d 733, 737 (2001)).]
e. Service on defendant within the state. [G.S.1-75.4(1)a.]
i. It is not necessary to apply the minimum contacts test of due process set forth
in International Shoe Co. v.Washington, 326 U.S. 310, 66 S. Ct. 154 (1945), and
later cases when the defendant is personally served in the forum state. [Lockert
v.Breedlove, 321 N.C. 66, 361 S.E.2d 581 (1987); Jenkins v.Jenkins, 89 N.C. App.
705, 367 S.E.2d 4 (1988) (court need not determine minimum contacts where
nonresident defendant was served with process while temporarily in North
Carolina for a brief visit related to his employment).]
C. Form of the Agreement
1. Separation agreements and property settlement agreements contrasted.
a. Separation agreements.
i. A “pure” separation agreement is a contract in which the husband and wife
agree to live apart and is executed while the parties are separated or are plan-
ning to separate “shortly thereafter.” [Stegall v.Stegall, 100 N.C. App. 398, 404,
397 S.E.2d 306, 309 (1990), review denied, 328 N.C. 274, 400 S.E.2d 461 (1991).]
ii. e heart of a separation agreement is the parties’ intention to live separate and
apart forever. [In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976).]
iii. Separation agreements are void as against public policy unless the parties are
living apart at the time of execution or they plan to separate shortly thereafter.
[Stegall v.Stegall, 100 N.C. App. 398, 403, 397 S.E.2d 306, 309 (1990) (stating
North Carolina’s traditional view that “separation agreements are void as against
public policy unless the parties are living apart at the time the document is exe-
cuted or they plan to separate shortly thereafter”), review denied, 328 N.C. 274,
400 S.E.2d 461 (1991); Newland v.Newland, 129 N.C. App. 418, 498 S.E.2d 855
(1998) (citing Stegall) (separation agreement valid if executed after separation or
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when separation is imminent); King v.King, 114 N.C. App. 454, 442 S.E.2d 154
(1994) (citing Morrison v.Morrison, 102 N.C. App. 514, 402 S.E.2d 855 (1991))
(parties must be separated or planning to separate immediately); In re Estate
of Tucci, 94 N.C. App. 428, 380 S.E.2d 782 (1989) (appears that public policy
established under Motley v.Motley, 255 N.C. 190, 120 S.E.2d 422 (1961), will not
permit parties to enforce the separation provisions of the agreement, i.e., sup-
port and alimony, and yet live together as a married couple), a’d per curiam,
326 N.C. 359, 388 S.E.2d 768 (1990); 3 Lee’s North Carolina Family Law §14.9b
(5th ed. 2002) (North Carolina law continues to require the parties to be sepa-
rated or have the intent to separate immediately as a condition of enforcing the
provisions on spousal support in separation agreements).]
iv. A separation agreement entered into while the parties were still living together
was valid even though the parties continued to live in the same house for
thirty-one days after execution of the agreement. [Newland v.Newland, 129
N.C. App. 418, 498 S.E.2d 855 (1998) (agreement provided that parties planned
to separate “substantially contemporaneously” with execution of the agreement;
after execution wife requested additional time to nd a new residence, to which
husband agreed; parties did not hold themselves out as husband and wife during
that time; there were no attempts at reconciliation; and wife began to pack her
belongings).]
v. Reconciliation of the parties voids the executory provisions of a separation
agreement. [Newland v.Newland, 129 N.C. App. 418, 498 S.E.2d 855 (1998)
(citing In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976)).] is is so
because living separate and apart is an essential part of the consideration sup-
porting a separation agreement, and if that consideration fails, the agreement
is void and unenforceable. [Stegall v.Stegall, 100 N.C. App. 398, 397 S.E.2d 306
(1990) (citing Small v.Small, 93 N.C. App. 614, 379 S.E.2d 273 (1989)), review
denied, 328 N.C. 274, 400 S.E.2d 461 (1991).] See Section IV.H, below, for more
on reconciliation. Contracts which provide that reconciliation will not aect the
terms of a separation agreement violate public policy. [In re Estate of Adamee,
291 N.C. 386, 230 S.E.2d 541 (1976).] For reconciliation agreements, see Section
III, above.
b. Property settlement agreements.
i. A property settlement agreement provides for a division of real and personal
property held by the spouses. [Stegall v.Stegall, 100 N.C. App. 398, 397 S.E.2d
306 (1990), review denied, 328 N.C. 274, 400 S.E.2d 461 (1991). See discussion in
Section II.B, above.]
ii. Parties may enter into a property settlement of their marital or divisible prop-
erty at any time before, during, or after marriage, provided the written agree-
ment is duly executed and acknowledged in accordance with G.S.52-10 and
52-10.1. [G.S.50-20(d).]
iii. Parties may enter into a property settlement at any time, regardless of whether
the parties contemplate separation or divorce. [Williams v.Williams, 120 N.C.
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App. 707, 463 S.E.2d 815 (1995), a ’d per curiam, 343 N.C. 299, 469 S.E.2d 553
(1996).]
iv. Because G.S.50-20(d) allows parties to enter into property settlements at any
time during or after marriage, a property settlement normally is not aected by
a resumption of marital relations. Reconciliation rescinds a property settlement
only if the settlement depended on the parties living separate and apart. [Small
v.Small, 93 N.C. App. 614, 621, 379 S.E.2d 273, 277 (1989) (stating that resump-
tion of marital relations does not necessarily rescind a property settlement
“which might with equal propriety have been made had no separation been con-
templated”). But see Stegall v.Stegall, 100 N.C. App. 398, 397 S.E.2d 306 (1990)
(recognizing that the rationale in Small applies when the agreement involved
is a pure property settlement but criticizing the Small decision for failing to
recognize that provisions of a separation agreement labeled “support” may, and
often do, constitute reciprocal consideration for property provisions in the same
agreement), review denied, 328 N.C. 274, 400 S.E.2d 461 (1991).]
v. If property settlement was “negotiated in ‘reciprocal consideration’ for the
separation agreement,” resumption of marital relations after the execution of a
property settlement agreement rescinds the executory provisions of a property
settlement. [Newland v.Newland, 129 N.C. App. 418, 420, 498 S.E.2d 855, 857
(1998) (citing Morrison v.Morrison, 102 N.C. App. 514, 518, 402 S.E.2d 855,
858 (1991)).] is is so whether the property settlement and the separation
agreement are contained in one document or in separate documents. [Morrison
v.Morrison, 102 N.C. App. 514, 402 S.E.2d 855 (1991).]
vi. See Section IV.H, below, for more on the eect of reconciliation. For reconcilia-
tion agreements, see Section III, above.
2. Incorporated and unincorporated separation agreements contrasted.
a. Incorporated agreements.
i. A separation agreement approved by the court is treated as a court-ordered
judgment; the contract between the parties is superseded by the court’s decree.
[Walters v.Walters, 307 N.C. 381, 298 S.E.2d 338 (1983) (applicable to judg-
ments entered on or after Jan. 11, 1983).] ese agreements are often referred to
as “incorporated” separation agreements.
ii. After Walters v.Walters, 307 N.C. 381, 298 S.E.2d 338 (1983), a separation
agreement entered as a consent judgment is treated the same as a judgment
entered after litigation. ere is no dierence between an agreement that the
court adopted or simply signed o on as in other civil cases. [Walters (consent
judgments are modiable and enforceable in the same manner as any other
judgment in a domestic relations case); Fucito v.Francis, 175 N.C. App. 144, 148,
622 S.E.2d 660, 663 (2005) (for practical purposes, in Walters, the court fash-
ioned a “one-size ts all” rule applicable to incorporated settlement agreements
in the area of domestic law, holding that when parties present their separation
agreement to the court for approval, the agreement will no longer be considered
a contract between the parties, but rather a court-ordered judgment).]
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iii. As a court order, an incorporated separation agreement is modiable and
enforceable by the contempt powers of the court. [Doub v.Doub, 313 N.C. 169,
326 S.E.2d 259 (1985) (per curiam); Walters v.Walters, 307 N.C. 381, 298 S.E.2d
338 (1983).] See Section IV.G, below, and Section IV.I, below, on modication
and enforcement of separation agreements.
iv. When interpreting an incorporated agreement, the trial court is to use normal
rules of construing contracts, including, if necessary, determining the intent of
the parties. [Holden v.Holden, 214 N.C. App. 100, 715 S.E.2d 201 (2011) (citing
Fucito v.Francis, 175 N.C. App. 144, 622 S.E.2d 660 (2005)).]
v. Once a separation agreement is incorporated into a judgment, the agreement:
(a) Loses its contractual nature, [Cavenaugh v.Cavenaugh, 317 N.C. 652, 347
S.E.2d 19 (1986).]
(b) Is superseded by the court’s order, [Mitchell v.Mitchell, 270 N.C. 253, 154
S.E.2d 71 (1967); Jones v.Jones, 144 N.C. App. 595, 548 S.E.2d 565 (2001)
(citing Mitchell).] and
(c) Ceases to exist as an independent enforceable contract. [Mitchell v.Mitch-
ell, 270 N.C. 253, 154 S.E.2d 71 (1967).]
vi. Upon breach, a party to an incorporated agreement must use remedies for the
enforcement of a judgment and may not sue for breach of contract, seek specic
performance of the contract, or le an action for a declaratory judgment to allow
the trial court to determine the terms of the agreement. [Holden v.Holden, 214
N.C. App. 100, 715 S.E.2d 201 (2011) (citing Walters v.Walters, 307 N.C. 381,
298 S.E.2d 338 (1983)).] For more on enforcement of an incorporated agree-
ment, see Section IV.I.3, below.
b. Unincorporated agreements.
i. A separation agreement not approved or ratied by a court is an “unincor-
porated” separation agreement and is governed by the general principles of
contract. [Jackson v.Jackson, 360 N.C. 56, 620 S.E.2d 862, rev’g per curiam for
reasons stated in dissenting opinion in 169 N.C. App. 46, 610 S.E.2d 731 (2005)
(Hunter, J., dissenting); Dalton v.Dalton, 164 N.C. App. 584, 596 S.E.2d 331
(2004) (citing Rose v.Rose, 108 N.C. App. 90, 422 S.E.2d 446 (1992)) (separation
agreement not incorporated into a court judgment is a contract); Rose (unincor-
porated separation agreement is a contract between the parties).]
ii. An unincorporated separation agreement is enforceable and modiable only
under traditional contract principles. [Long v.Long, 160 N.C. App. 664, 588
S.E.2d 1 (2003) (citing Jones v.Jones, 144 N.C. App. 595, 548 S.E.2d 565 (2001));
Gilmore v.Garner, 157 N.C. App. 664, 580 S.E.2d 15 (2003) (construction and
eect of unincorporated separation agreement ordinarily determined by the
same rules that govern the interpretation of contracts generally); Lasecki v.
Lasecki, 809 S.E.2d 296 (N.C. Ct. App. 2017) (trial court has no authority to
modify an unincorporated separation agreement).] See Section IV.G, below, and
Section IV.I, below, on modication and enforcement of separation agreements.
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iii. Upon breach, a party to an unincorporated agreement may sue for breach of
contract or le an action for a declaratory judgment to allow the trial court
to determine the terms of the agreement. [Lasecki v. Lasecki, 809 S.E.2d 296
(N.C.Ct. App. 2017); Holden v.Holden, 214 N.C. App. 100, 715 S.E.2d 201
(2011) (citing Walters v.Walters, 307 N.C. 381, 298 S.E.2d 338 (1983)).]
iv. Enforcement of provisions in an unincorporated separation agreement does not
transform the unincorporated agreement into a court order. [See Condellone
v.Condellone, 129 N.C. App. 675, 501 S.E.2d 690 (despite the fact that two
money judgments had been entered against husband for unpaid alimony, one
of which ordered specic performance of the alimony provisions in the parties’
separation agreement, the trial court had no authority under G.S. Chapter 50
to modify the alimony provisions based on changed circumstances because the
agreement had not been incorporated), review denied, 349 N.C. 354, 517 S.E.2d
889 (1998); Danai v.Danai, 166 N.C. App. 279, 603 S.E.2d 168 (2004) (unpub-
lished) (not paginated on Westlaw) (stating that “[w]ere we to nd that a court’s
enforcement of a separation agreement by applying contract remedies acted as a
de facto incorporation of an otherwise unincorporated agreement, we, in eect,
would force a level of jurisdiction over separation agreements not desired or
intended by the parties to the agreement and which would infringe on their free-
dom to contract”); cf. Young v.Young, 224 N.C. App. 388, 736 S.E.2d 538 (2012)
(contempt order requiring husband to specically perform an unincorporated
provision of a separation agreement resulted in that provision being incorpo-
rated going forward).]
c. Trial court’s authority to incorporate a separation agreement.
i. ere is no requirement that a separation agreement be incorporated into a
judgment, making it a court order. [See Walters v.Walters, 307 N.C. 381, 386,
298 S.E.2d 338, 342 (1983) (stating that “parties can avoid the burdens of a court
judgment by not submitting their agreement to the court”); Cavenaugh v.Cav-
enaugh, 317 N.C. 652, 660 n.1, 347 S.E.2d 19, 24 n.1 (1986) (observing that if a
party did not desire the results that accompany incorporation, the party was free
not to enter into an agreement which provided that either party could request
incorporation; also noting the possibility that a trial judge, in the exercise of his
equitable power, may be able to refuse to incorporate a separation agreement
into the divorce decree upon nding that incorporation would be inequitable);
Pataky v.Pataky, 160 N.C. App. 289, 303–04 n.6, 585 S.E.2d 404, 414 n.6 (2003)
(stating in a footnote that parties should be free to evaluate the relative advan-
tages and disadvantages of incorporation), a’d per curiam in part, review
dismissed in part, 359 N.C. 65, 602 S.E.2d 360 (2004).]
ii. Incorporated separation agreements are consent judgments. [Walters v.Walters,
307 N.C. 381, 298 S.E.2d 338, 342 (1983) (consent judgments are modiable and
enforceable in the same manner as any other judgment in a domestic relations
case).]
(a) e trial court’s authority to enter a consent judgment depends on the
unqualied consent of the parties at the time the judgment is entered.
[Rockingham Cty. Dep’t Soc. Servs. ex rel. Walker v.Tate, 202 N.C. App. 747,
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689 S.E.2d 913 (2010); Lalanne v.Lalanne, 43 N.C. App. 528, 259 S.E.2d 402
(1979) (agreement reached between the parties four months before entry
of the judgment could not support entry of judgment based on consent as
there was no indication of the continuing consent of the parties).]
(b) ere is no requirement with consent judgments, including consent judg-
ments relating to property, support, and custody rights of married persons,
that the parties, at the time of the entry of the judgment, actually appear in
court and acknowledge to the court their continuing consent to the entry of
the consent judgment. e parties’ failure, however, to acknowledge their
continuing consent to the proposed judgment before the judge who is to
sign the consent judgment subjects the judgment to being set aside on the
ground that the consent of the parties was not subsisting at the time of its
entry. [Rockingham Cty. Dep’t Soc. Servs. ex rel. Walker v.Tate, 202 N.C.
App. 747, 689 S.E.2d 913 (2010) (citing Tevepaugh v.Tevepaugh, 135 N.C.
App. 489, 521 S.E.2d 117 (1999)).]
(c) But see Cavenaugh v.Cavenaugh, 317 N.C. 652, 347 S.E.2d 19 (1984) (indi-
cating that an agreement to incorporate within the contract itself may be
sucient to support incorporation); Campbell v.Campbell, 233 N.C. App.
598, 758 S.E.2d 903 (2014) (unpublished) (agreement to incorporate in
2009 mediated settlement agreement supported incorporation in 2010
divorce judgment).]
(d) A trial court probably has the authority to refuse to incorporate an agree-
ment despite the consent of the parties if the court nds that incorporation
would not be equitable. [See Cavenaugh v.Cavenaugh, 317 N.C. 652, 660
n.1, 347 S.E.2d 19, 24 n.1 (1984); Buckingham v.Buckingham, 134 N.C. App.
82, 516 S.E.2d 869 (the court should review a consent judgment to ensure
that it does not contradict statutory, judicial, or public policy), review
denied, 351 N.C. 100, 540 S.E.2d 353 (1999).]
(e) See also Cheryl Howell, What’s e Law About Incorporating Separation Agree-
ments? UNC S. G’: O C S B (Feb. 6, 2015), http://
civil.sog.unc.edu/whats-the-law-about-incorporating-separation-agreements.
D. Requisites and Validity of Separation Agreements
1. A separation agreement must be:
a. Consistent with public policy;
b. Executed by persons of full age about to be married or by married persons;
c. In written form; and
d. Acknowledged by both parties before a certifying ocer. [G.S.52-10(a).]
i. If a separation agreement is improperly executed, it is void ab initio. [Kelley v.
Kelley, 798 S.E.2d 771 (N.C. Ct. App. 2017); Moore v.Moore, 108 N.C. App. 656,
424 S.E.2d 673 (citing Lawson v.Lawson, 321 N.C. 274, 362 S.E.2d 269 (1987)),
a’d per curiam, 334 N.C. 684, 435 S.E.2d 71 (1993). See Raymond v. Ray-
mond, 811 S.E.2d 168 (N.C. Ct. App. 2018) (where wife signed agreement, sent
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agreement to husband who added provisions before he signed, and wife did not
sign acknowledging the new additions, entire agreement was invalid).]
ii. A certicate of acknowledgment may be subsequently axed to a separation
agreement if the agreement was valid under the appropriate statute, no rights of
creditors or third parties being involved. [Lawson v.Lawson, 321 N.C. 274, 362
S.E.2d 269 (1987) (where husband signed agreement in presence of a notary,
acknowledgment was sucient even if notary seal and certication were added
later).]
iii. To impeach a notary’s certication, there must be more than a bare allegation
that no acknowledgment occurred. [Moore v.Moore, 108 N.C. App. 656, 424
S.E.2d 673 (notarization of husband’s signature on a separation agreement not
invalid due to a technical statutory violation where husband never asserted that
the signature was not his), a ’d per curiam, 334 N.C. 684, 435 S.E.2d 71 (1993).]
2. In determining the validity of a separation agreement, a trial court is not required to make
an independent determination as to whether the agreement is fair. [Knight v.Knight, 76
N.C. App. 395, 398, 333 S.E.2d 331, 333 (1985) (stating that a separation agreement should
be “viewed today like any other bargained-for exchange between parties who are presum-
ably on equal footing”); King v.King, 114 N.C. App. 454, 458, 442 S.E.2d 154, 157 (1994)
(quoting Hill v.Hill, 94 N.C. App. 474, 480, 380 S.E.2d 540, 545 (1989)) (noting that “there
is no requirement for the trial court to make an ‘independent determination regarding
the “fairness” of the substantive terms of the agreement, so long as the circumstances of
execution were fair’ ”). See also Lancaster v.Lancaster, 138 N.C. App. 459, 530 S.E.2d 82
(2000) (in determining the validity of a separation agreement, the court of appeals is not
required to make an independent determination as to fairness).] But a court will “see to
it that they are arrived at fairly and equitably.” [Stegall v.Stegall, 100 N.C. App. 398, 401,
397 S.E.2d 306, 307 (1990)) (quoting Johnson v.Johnson, 67 N.C. App. 250, 255, 313 S.E.2d
162, 165 (1984)) (considering wife’s allegations that she signed agreement under duress
and coercion, court noted that contracts between husbands and wives are “special agree-
ments” which courts have given a “cloak of protection”), review denied, 328 N.C. 274, 400
S.E.2d 461 (1991).]
3. “To be valid, ‘a separation agreement must be untainted by fraud... and must have been
entered into without coercion or the exercise of undue inuence, and with full knowledge
of all the circumstances, conditions, and rights of the contracting parties.’ ” [Lancaster
v.Lancaster, 138 N.C. App. 459, 462, 530 S.E.2d 82, 84 (2000) (quoting Harro v.Harro,
100 N.C. App. 686, 689, 398 S.E.2d 340, 342 (1990)). See also Sidden v.Mailman, 137 N.C.
App. 669, 529 S.E.2d 266 (2000) (separation agreement subject to rescission on grounds
of lack of mental capacity, mistake, fraud, duress, or undue inuence).] See Section IV.I.4,
below, for more on these topics as defenses to enforcement related to execution.
4. e agreement must not violate public policy. [See Torres v.McClain, 140 N.C. App. 238,
535 S.E.2d 623 (2000) (fact that Illinois law awarded wife a portion of husband’s nonvested
military pension, when North Carolina law did not so provide, was not a violation of
North Carolina public policy); Morrison v.Morrison, 102 N.C. App. 514, 402 S.E.2d 855
(1991) (contracts that provide that reconciliation will not aect the terms of a separation
agreement violate the policy behind separation agreements and are void).]
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5. An agreement that required that all court proceedings between husband and wife be
closed to the public violates public policy, specically, the qualied public right of access
to civil court proceedings guaranteed by Article I, Section 18 of the North Carolina Con-
stitution. [France v.France, 209 N.C. App. 406, 705 S.E.2d 399 (2011) (trial court did not
err by refusing to close the proceedings; plainti failed to show a countervailing public
interest, namely, his asserted right to privacy in matters involving the parenting of his
minor children, that outweighed the qualied right of the public to open proceedings;
moreover, agreement should not be excepted from the Public Records Act, and order
for open proceedings did not violate any federal constitutional rights).] In an appeal
after remand, an order unsealing pleadings and documents associated with the case was
armed based on a substantial change of circumstances. [France v.France, 224 N.C. App.
570, 738 S.E.2d 180 (2012), review denied, 366 N.C. 584, 740 S.E.2d 479 (2013).]
E. Construing a Separation Agreement
1. Generally.
a. An unincorporated separation agreement is a contract and its meaning is ordinarily
determined by the same rules used to interpret any other contract. [Case v.Case, 73
N.C. App. 76, 325 S.E.2d 661, review denied, 313 N.C. 597, 330 S.E.2d 606 (1985);
Brenenstuhl v.Brenenstuhl, 169 N.C. App. 433, 436, 610 S.E.2d 301, 303 (2005)
(quoting Blount v.Blount, 72 N.C. App. 193, 195, 323 S.E.2d 738, 740 (1984)) (“[t]he
same rules which govern the interpretation of contracts generally apply to separation
agreements”); Gilmore v.Garner, 157 N.C. App. 664, 580 S.E.2d 15 (2003).]
b. Similarly, in an action for contempt, a court is permitted to use “normal rules of
interpreting or construing contracts” when interpreting an agreement that has been
incorporated. [Fucito v.Francis, 175 N.C. App. 144, 150, 622 S.E.2d 660, 664 (2005).]
c. Whenever a court is called upon to interpret a contract, its primary purpose is to
ascertain the intention of the parties at the moment of its execution. [Gilmore v.Gar-
ner, 157 N.C. App. 664, 580 S.E.2d 15 (2003).]
d. To determine the intent of the parties, the court must look rst to the language of
the agreement. [Jackson v.Jackson, 360 N.C. 56, 620 S.E.2d 862, rev’g per curiam
for reasons stated in dissenting opinion in 169 N.C. App. 46, 610 S.E.2d 731 (2005)
(Hunter, J., dissenting).]
e. Where the terms of a separation agreement are plain and explicit, the court will
determine the legal eect and enforce it as written by the parties. [Tyndall-Taylor
v.Tyndall, 157 N.C. App. 689, 580 S.E.2d 58 (2003); Anderson v.Anderson, 145 N.C.
App. 453, 550 S.E.2d 266 (2001) (citing Blount v.Blount, 72 N.C. App. 193, 323 S.E.2d
738 (1984), review denied, 313 N.C. 506, 329 S.E.2d 389 (1985)); Blount.]
f. e trial court determines as a matter of law the construction of a clear and unam-
biguous contract. [McIntyre v.McIntyre, 188 N.C. App. 26, 654 S.E.2d 798 (citing
Hagler v.Hagler, 319 N.C. 287, 354 S.E.2d 228 (1987)), a’d per curiam, 362 N.C.
503, 666 S.E.2d 749 (2008); Anderson v.Anderson, 145 N.C. App. 453, 550 S.E.2d
266 (2001) (citing Hagler). See also Case v.Case, 73 N.C. App. 76, 325 S.E.2d 661
(when a separation agreement is in writing and free from ambiguity, its meaning and
eect are questions of law for the court), review denied, 313 N.C. 597, 330 S.E.2d 606
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(1985).] e trial court’s rulings on questions of law are fully reviewable on appeal.
[Reavis v.Reavis, 82 N.C. App. 77, 345 S.E.2d 460 (1986).]
g. Whether the language of a contract is ambiguous or unambiguous is a question for
the court to determine. [Tyndall-Taylor v.Tyndall, 157 N.C. App. 689, 580 S.E.2d 58
(2003); Anderson v.Anderson, 145 N.C. App. 453, 550 S.E.2d 266 (2001).]
h. An ambiguity exists where the terms of the contract are reasonably susceptible to
either of the diering interpretations proered by the parties. [McIntyre v.McIntyre,
188 N.C. App. 26, 654 S.E.2d 798, a’d per curiam, 362 N.C. 503, 666 S.E.2d 749
(2008).]
2. Use of extrinsic evidence.
a. Rule when agreement is not ambiguous.
i. e parol evidence rule prohibits evidence of agreements made prior to or
contemporaneously with the signing of a written contract that would alter or
contradict the written terms. [Lancaster v.Lancaster, 138 N.C. App. 459, 530
S.E.2d 82 (2000) (parol evidence rule barred evidence of alleged oral agreements
between husband and wife that would have added or changed terms of the sepa-
ration agreement).]
ii. When the terms of an agreement are not ambiguous, extrinsic evidence may
not be used to determine the intention of the parties. [Hartman v.Hartman,
80 N.C. App. 452, 343 S.E.2d 11 (1986) (agreement clearly and unambiguously
established that parties intended to dispose of their respective property rights in
both real and personal property, even though agreement contained no specic
references to real property but only to personal property; no extrinsic evidence
of parties’ intent allowed).]
iii. When the terms of the agreement are clear and unambiguous, construction of
the agreement is a matter of law for the trial court. [Hagler v.Hagler, 319 N.C.
287, 354 S.E.2d 228 (1987); Hartman v.Hartman, 80 N.C. App. 452, 343 S.E.2d
11 (1986) (citing Piedmont Bank & Tr. Co. v.Stevenson, 79 N.C. App. 236,
240–41, 339 S.E. 2d 49, 52 (1986)).]
b. Rule when agreement is ambiguous.
i. If a term is ambiguous, the court may admit parol evidence to explain the term.
[Jackson v.Jackson, 360 N.C. 56, 620 S.E.2d 862, rev’g per curiam for reasons
stated in dissenting opinion in 169 N.C. App. 46, 610 S.E.2d 731 (2005) (Hunter,
J., dissenting) (trial court erred by nding separation agreement vague and
unenforceable when intent of the parties could be determined by the agree-
ment’s plain language and use of parol evidence); Patterson v.Taylor, 140 N.C.
App. 91, 535 S.E.2d 374 (2000) (court may consider extrinsic evidence to deter-
mine the parties’ intention behind an ambiguous term); Vestal v.Vestal, 49 N.C.
App. 263, 271 S.E.2d 306 (1980) (although parol evidence may not be allowed to
vary, add to, or contradict an integrated written instrument, an ambiguous term
may be explained or construed with the aid of parol evidence).]
ii. A trial court seeking to determine the intent of the parties at the time an agree-
ment was signed may consider extrinsic evidence of the conduct of the parties as
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they carry out the agreement. [Patterson v.Taylor, 140 N.C. App. 91, 535 S.E.2d
374 (2000) (how parties implement an agreement over a number of years may be
probative of their intent at time of execution).]
iii. When the terms of a contract are ambiguous, the intent of the parties is a ques-
tion of fact for the trier of fact and parol evidence is admissible to ascertain that
intent. [Hartman v.Hartman, 80 N.C. App. 452, 343 S.E.2d 11 (1986) (citing
Piedmont Bank & Tr. Co. v.Stevenson, 79 N.C. App. 236, 240–41, 339 S.E.2d
49, 52 (1986)); Weisberg v.Grith, 171 N.C. App. 517, 615 S.E.2d 738 (2005)
(unpublished).]
iv. Review of a trial court’s determination that the terms of an unincorporated sep-
aration agreement are ambiguous is de novo. [Weisberg v.Grith, 171 N.C. App.
517, 615 S.E.2d 738 (2005) (unpublished) (citing Crider v.Jones Island Club,
Inc., 147 N.C. App. 262, 554 S.E.2d 863 (2001)).]
F. Eect of a Separation Agreement on Various Rights or Interests of the Parties
1. Eect on equitable distribution (ED).
a. A valid separation agreement that distributes all of the parties’ property and com-
plies with G.S.52-10 bars an action for ED. [Herring v.Herring, 231 N.C. App. 26, 752
S.E.2d 190 (2013) (citing Lee v.Lee, 93 N.C. App. 584, 378 S.E.2d 554 (1989)) (sepa-
ration agreement that provided that wife was to retain her state retirement accounts
as her separate property precluded trial court from valuing and distributing those
accounts); Brenenstuhl v.Brenenstuhl, 169 N.C. App. 433, 610 S.E.2d 301 (2005)
(citing Blount v.Blount, 72 N.C. App. 193, 323 S.E.2d 738 (1984), review denied, 313
N.C. 506, 329 S.E.2d 389 (1985)); Lee (citing Knight v.Knight, 76 N.C. App. 395, 333
S.E.2d 331 (1985)).]
b. Separation agreements that waive all property rights bar ED. [See Blount v.Blount, 72
N.C. App. 193, 323 S.E.2d 738 (1984) (general relinquishment of all property rights
in a 1976 separation agreement was a bar to ED even though the agreement did not
list property owned by husband; trial court’s determination that a 1962 premari-
tal agreement did not bar ED, while correct, did not preclude determination that
1976 separation agreement barred ED), review denied, 313 N.C. 506, 329 S.E.2d 389
(1985); Hartman v.Hartman, 80 N.C. App. 452, 343 S.E.2d 11 (1986) (general waiv-
ers in separation agreement were sucient to bar ED even though agreement made
no reference to specic real property); Porter v.Porter, 217 N.C. App. 629, 720 S.E.2d
778 (2011) (agreement executed in 1988, in which parties relinquished and released
all rights in each other’s real and personal property, barred ED even though parties
reconciled following execution of the agreement and lived together until their nal
separation in 2005; 1988 agreement, incorporated in 2007 divorce judgment, pro-
vided that it remained in eect if the parties reconciled unless otherwise provided by
the parties in writing after reconciliation).]
c. Agreements intended by the parties to be full and nal distributions of all property
bar ED. [See G.S.50-20(d) (properly executed agreements providing for distribution
of marital or divisible property shall be binding on the parties); Hagler v.Hagler, 319
N.C. 287, 354 S.E.2d 228 (1987) (comprehensive property settlement provisions in
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separation agreement established parties’ intent to fully dispose of their respective
property rights and were sucient to bar ED even though agreement did not men-
tion ED); Anderson v.Anderson, 145 N.C. App. 453, 550 S.E.2d 266 (2001) (agree-
ment clearly intended to be a full settlement even though it did not divide husband’s
military pension).]
d. When language is unambiguous, determination of whether the parties intended the
agreement to be a full and nal settlement is a matter of law to be determined by
the court. [Anderson v.Anderson, 145 N.C. App. 453, 550 S.E.2d 266 (2001) (trial
court did not err in refusing to allow evidence on the issue of whether the agreement
barred the equitable distribution of husband’s pension rights).]
e. An agreement may bar ED even if executed before adoption of the Equitable Distri-
bution Act. [Morrison v.Morrison, 102 N.C. App. 514, 402 S.E.2d 855 (1991) (citing
Small v.Small, 93 N.C. App. 614, 379 S.E.2d 273 (1989)) (agreement executed in 1976
that released all spousal property rights found to bar ED sought in 1988).]
f. An action to enforce a separation agreement that results in a distribution of prop-
erty does not constitute an action for ED prohibited by the separation agreement.
[Gilmore v.Garner,157 N.C. App. 664, 580 S.E.2d 15 (2003) (specic performance of
a separation agreement that enforced provision granting wife a portion of husband’s
railroad retirement benets did not convert the action into a prohibited action for
ED).]
2. Eect on postseparation support and alimony.
a. Alimony, postseparation support, and attorney fees may be barred by an express
provision in a valid separation agreement, premarital agreement, or marital con-
tract made pursuant to G.S.52-10(a1), so long as the agreement is performed.
[G.S.50-16.6(b), amended by S.L. 2013-140, §2, eective June 19, 2013.]
b. “Express” means “[d]enitely and explicitly stated...[p]articular; specic.” [Napier
v.Napier, 135 N.C. App. 364, 367, 520 S.E.2d 312, 314 (1999) (dictionary denition of
“express”), review denied, 351 N.C. 358, 543 S.E.2d 132 (2000).]
c. e waiver provision must specically refer to alimony. A general release will not be
sucient. [Napier v.Napier, 135 N.C. App. 364, 365–66, 366, 520 S.E.2d 312, 313
(1999) (blanket release of “all causes of action, claims, rights or demands whatsoever,
at law or in equity” did not release or settle wife’s alimony claims since it did not
specically refer to the waiver, release, or settlement of “alimony” or use some other
similar language; nor did language stating that agreement was “an agreement settling
their property and marital rights” and that it was “in full satisfaction of all obligations
which each of them now has or might hereafter or otherwise have toward the other”),
review denied, 351 N.C. 358, 543 S.E.2d 132 (2000); Jones v.Jones, 162 N.C. App. 134,
590 S.E.2d 308 (2004) (marital dissolution agreement entered into after execution
of a separation agreement, which contained no specic mention of alimony or of
statutory provisions regarding alimony, did not waive alimony due wife under the
separation agreement). But see Stewart v.Stewart, 141 N.C. App. 236, 240, 541 S.E.2d
209, 212 (2000) (holding that a premarital agreement that waived “any right or claim
of any kind, character, or nature whatsoever” of a spouse pursuant to G.S.Chapter50
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was suciently express to constitute a valid waiver of postseparation support and
alimony).]
d. A reference to G.S.50-20(d) in the preamble to a separation agreement revealed the
intent of the parties to restrict the agreement to marital property issues within the
scope of equitable distribution (ED). Because spousal support is not within the prov-
ince of ED, the agreement did not waive alimony rights. [Napier v.Napier, 135 N.C.
App. 364, 520 S.E.2d 312 (1999), review denied, 351 N.C. 358, 543 S.E.2d 132 (2000).]
e. In an unpublished opinion, Gordon v. Gordon, 238 N.C. App. 362, 768 S.E.2d 202
(2014), the court of appeals upheld the trial court’s decision that a court order for
alimony superseded and replaced the alimony provisions contained in an unincor-
porated separation agreement. According to the court, plainti forfeited her right to
enforce the contract provisions regarding alimony when she led the action seeking
alimony by court order.
f. For more on the eect of separation agreements on alimony, see Postseparation
Support and Alimony, Bench Book, Vol. 1, Chapter2.
3. Eect on child custody.
a. Custody agreements are enforceable between parties. [See Child Custody, Bench
Book, Vol. 1, Chapter4.]
b. Although parents may contract concerning custody, no contract will deprive the
court of inherent authority to protect and provide for minor children. [Hennessey
v.Duckworth, 231 N.C. App. 17, 22 n.4, 752 S.E.2d 194, 198 n.4 (2013) (citing Kiger
v.Kiger, 258 N.C. 126, 129, 128 S.E.2d 235, 237 (1962)) (it is well-established that
custody and support provisions in a separation agreement are always subject to later
modication by the court); Hudson v.Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980);
Harris v.Harris, 58 N.C. App. 314, 293 S.E.2d 602 (1982) (questions of support and
custody may not be nally determined by an agreement between the parties but
remain matters for the court).]
c. erefore, a separation agreement will not prevent one party from subsequently
ling an action seeking court-ordered custody. [See Winborne v.Winborne, 41 N.C.
App. 756, 255 S.E.2d 640 (despite the existence of an agreement, the trial court has
a duty to award custody in accordance with the best interest of the child), review
denied, 298 N.C. 305, 259 S.E.2d 918 (1979).]
d. Parents may enter individualized separation agreements and set up specialized
conditions of “joint custody” by including or omitting “conditions pertaining to the
child’s education, health care, religious training, and the like...tak[ing] into account
various factors including the particularities of the relationships, the personalities
involved, the bonds between family members, the needs of the parties, and any other
appropriate features that together make each marriage and each family unique.”
[Patterson v.Taylor, 140 N.C. App. 91, 96, 535 S.E.2d 374, 378 (2000).]
4. Eect on child support.
a. Agreements regarding child support are enforceable. [See Procedure for Initial Child
Support Orders, Bench Book, Vol. 1, Chapter3, Part 2.]
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b. A parent may assume in a separation agreement contractual obligations to a child
greater than the law imposes. [Jackson v.Jackson, 360 N.C. 56, 620 S.E.2d 862 (unin-
corporated agreement provided for child support beyond age of majority), rev’g per
curiam for reasons stated in dissenting opinion in 169 N.C. App. 46, 610 S.E.2d 731
(2005) (Hunter, J., dissenting); Altman v.Munns, 82 N.C. App. 102, 345 S.E.2d 419
(1986) (father bound by separation agreement to pay for daughter’s college expenses);
Blount v.Lemaire, 232 N.C. App. 521, 757 S.E.2d 527 (2014) (unpublished) (not pagi-
nated on Westlaw) (when father agreed in incorporated separation agreement to pay
college expenses for “room, board and tuition” and “reasonable spending money” for
each child, court properly entered money judgment for college costs father failed to
pay).]
c. Parties may contract that support will be paid in a higher amount or for longer than
required by statute, but the court of appeals has held that if the duration of support
ordered in an incorporated agreement is “less generous” than statutory provisions,
the obligee can recover support for the duration provided by G.S. 50-13.4. [Malone
v. Hutchinson-Malone, 246 N.C. App. 544, 548–49, 784 S.E.2d 206, 209 (2016).]
d. However, no agreement between the parents can fully deprive the courts of their
authority to protect the best interests of minor children. [Pataky v.Pataky, 160 N.C.
App. 289, 585 S.E.2d 404 (2003) (citing Winborne v.Winborne, 41 N.C. App. 756,
255 S.E.2d 640 (1979)), a ’d per curiam in part, review dismissed in part, 359 N.C.
65, 602 S.E.2d 360 (2004); Bottomley v.Bottomley, 82 N.C. App. 231, 346 S.E.2d 317
(1986) (court has inherent authority to pass on custody and support issues); Boyd
v.Boyd, 81 N.C. App. 71, 343 S.E.2d 581 (1986) (citing Fuchs v.Fuchs, 260 N.C. 635,
133 S.E.2d 487 (1963)) (provisions of a separation agreement relating to custody and
support are not binding on the court, which has inherent and statutory authority to
protect the interests of children).]
e. Parties to an unincorporated separation agreement may seek court-ordered prospec-
tive child support.
i. Either party to an unincorporated separation agreement may seek a court
order to establish child support pursuant to G.S.50-13.4 in an amount, scope,
or duration dierent from that provided in the unincorporated agreement.
[See Bottomley v.Bottomley, 82 N.C. App. 231, 346 S.E.2d 317 (1986) (noncus-
todial parent sought a decrease in his support payments); Boyd v.Boyd, 81 N.C.
App. 71, 343 S.E.2d 581 (1986) (custodial parent sought an increase in amount
of support).]
ii. In this case, the child support order entered by the court is an initial child sup-
port order and does not modify the child support provisions contained in the
unincorporated separation agreement. [Pataky v.Pataky, 160 N.C. App. 289, 585
S.E.2d 404 (2003) (citing Boyd v.Boyd, 81 N.C. App. 71, 343 S.E.2d 581 (1986)),
a’d per curiam in part, review dismissed in part, 359 N.C. 65, 602 S.E.2d 360
(2004); Powers v.Parisher, 104 N.C. App. 400, 409 S.E.2d 725 (1991), appeal
dismissed, review denied, 331 N.C. 286, 417 S.E.2d 254 (1992).]
iii. A party seeking an initial judicial determination of child support where the
parties have executed an unincorporated separation agreement need not show
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changed circumstances between the time of the separation agreement and the
hearing, but must instead show the amount of support necessary to meet the
reasonable needs of the children at the time of the hearing. [Pataky v.Pataky,
160 N.C. App. 289, 585 S.E.2d 404 (2003), a’d per curiam in part, review
dismissed in part, 359 N.C. 65, 602 S.E.2d 360 (2004).]
f. Awarding prospective support when there is an unincorporated separation
agreement.
i. When a valid, unincorporated separation agreement determines a parent’s child
support obligations, in a subsequent action for child support, the court must
base the parent’s prospective child support obligation on the amount of support
provided under the separation agreement rather than the amount of support
payable under the child support guidelines, unless the court determines, by the
greater weight of the evidence, taking into account the child’s needs and the
factors enumerated in the rst sentence of G.S.50-13.4(c), that the amount of
support under the separation agreement is unreasonable. [N.C. C S
G, 2019 A. R. N.C. 49 (effective Jan. 1, 2019; hereinafter referred to
as 2019 Guidelines).]
ii. To establish prospective child support when there is an unincorporated separa-
tion agreement, the court must apply a rebuttable presumption that the support
amount agreed on is just and reasonable.
iii. Where parties to an unincorporated separation agreement have agreed upon
the amount for the support and maintenance of their minor children, there is a
presumption that the amount mutually agreed upon is just and reasonable and
that, therefore, application of the guidelines would be inappropriate. [Pataky
v.Pataky, 160 N.C. App. 289, 585 S.E.2d 404 (2003), a’d per curiam in part,
review dismissed in part, 359 N.C. 65, 602 S.E.2d 360 (2004).]
iv. To rebut the presumption, a party must show by the greater weight of the evi-
dence that the amount in the agreement is not reasonable, taking into account
the needs of the children existing at the time of the hearing and considering the
factors listed in the rst sentence of G.S.50-13.4(c), which are the reasonable
needs of the child for health, education, and maintenance, having due regard to
the estates, earnings, conditions, accustomed standard of living of the child and
the parties, the child care and homemaker contributions of each party, and other
facts of the particular case. [Pataky v.Pataky, 160 N.C. App. 289, 585 S.E.2d 404
(2003), a’d per curiam in part, review dismissed in part, 359 N.C. 65, 602 S.E.2d
360 (2004).]
v. When considering the “earnings” of the parties, the court cannot consider a
parent’s earning capacity rather than actual income unless the court concludes
that the party is deliberately depressing his income in bad faith disregard of his
child support obligation. [Lasecki v. Lasecki, 246 N.C. App. 518, 786 S.E.2d 286
(2016).]
vi. When applying the presumption, the trial court must make ndings of fact
(a) Regarding the needs of the child at the time of the hearing and the factors
set out in the rst sentence of G.S.50-13.4(c) and
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(b) Indicating whether the party has rebutted the presumption of reasonable-
ness. [Pataky v.Pataky, 160 N.C. App. 289, 585 S.E.2d 404 (2003), a’d
per curiam in part, review dismissed in part, 359 N.C. 65, 602 S.E.2d 360
(2004).]
vii. e presumption cannot be rebutted by evidence that a parent’s income has
been reduced. Rather, the presumption is rebutted only by evidence that the
amount in the agreement does not meet the needs of the children. [Lasecki
v.Lasecki, 809 S.E.2d 296 (N.C. Ct. App. 2017).]
viii. If the presumption is rebutted:
(a) e trial court is to look to the presumptive guidelines but may deviate if
it determines that application of the guidelines would not meet or would
exceed the needs of the child or would be otherwise unjust or inappro-
priate. [Pataky v.Pataky, 160 N.C. App. 289, 585 S.E.2d 404 (2003), a’d
per curiam in part, review dismissed in part, 359 N.C. 65, 602 S.E.2d 360
(2004).]
(b) e trial court has discretion to order child support in an amount greater
than that in the unincorporated agreement. [Carson v.Carson, 199 N.C.
App. 101, 680 S.E.2d 885 (2009) (where presumption rebutted, trial court
correctly ordered prospective child support greater than the amount set out
in the unincorporated separation agreement).]
(c) e trial court has discretion to order child support in an amount less than
that in the unincorporated agreement. [Brind’Amour v.Brind’Amour, 196
N.C. App. 322, 674 S.E.2d 448 (2009) (citing Bottomley v.Bottomley, 82
N.C. App. 231, 346 S.E.2d 317 (1986)) (noting however, that in most cases
the custodial parent obtains child support in an amount greater than that
in the agreement). Cf. Lasecki v. Lasecki, 809 S.E.2d 296, 304 (N.C. Ct. App.
2017) (emphasis in original) (“the question for the trial court was limited . . .
to whether the amount of child support should be increased”).]
(d) If the court orders a parent to pay less child support than provided under
an unincorporated separation agreement, the court of appeals has indicated
that the party receiving support may still be able to seek to enforce his con-
tractual rights to support under the unincorporated separation agreement.
[Lasecki v. Lasecki, 809 S.E.2d 296 (N.C. Ct. App. 2017) (mother entitled to
money judgment for entire amount due under contract even though trial
court ordered specic performance of a lower amount); Bottomley v.Bot-
tomley, 82 N.C. App. 231, 346 S.E.2d 317 (1986) (order setting child support
in lesser sum than that provided for in parties’ separation agreement did
not deprive obligee wife of her contractual right to recover sums provided
for in the agreement but did limit her contempt remedy to sums provided
for by court order); McKaughn v.McKaughn, 29 N.C. App. 702, 225 S.E.2d
616 (1976) (noting that judgment cutting monthly support payments in
half did not change the contractual obligations under the separation agree-
ment). But see Richardson v.Richardson, 261 N.C. 521, 135 S.E.2d 532
(1964) (when court ordered less in support than required by separation
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agreement, mother not entitled to enforce separation agreement to recover
the dierence).]
ix. If the presumption is not rebutted, the trial court should enter an order for sup-
port in the separation agreement amount and make a nding that application of
the guidelines would be inappropriate. [Pataky v.Pataky, 160 N.C. App. 289, 585
S.E.2d 404 (2003), a ’d per curiam in part, review dismissed in part, 359 N.C. 65,
602 S.E.2d 360 (2004).]
g. Awarding retroactive support when there is an unincorporated separation
agreement.
i. Where a valid, unincorporated separation agreement sets out the obligations of
a parent for support and the parent fully complies with that obligation, a trial
court is not permitted to award retroactive child support absent an emergency
situation. [2019 Guidelines; Carson v.Carson, 199 N.C. App. 101, 680 S.E.2d 885
(2009) (citing Fuchs v.Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963)) (interpreting
the 2006 Guidelines) (time period in Carson for which support sought was
three years prior to the ling of the complaint, during which time parties had an
unincorporated separation agreement that was not being breached; trial court
erred by using guidelines to determine retroactive support when unincorporated
separation agreement was in eect and was not being breached).]
h. See Procedure for Initial Child Support Orders and Modication of Child Support
Orders, Bench Book, Vol. 1, Chapter3, Parts 2 and 3, for more on the eect of sup-
port provisions in a separation agreement. Specic topics include, among others,
enforcement of child support provisions in both incorporated and unincorporated
agreements, other cases considering a request to establish child support in an
amount dierent than that in an unincorporated agreement, and the two types of
retroactive support.
5. Eect on rights in estate of a decedent.
a. Unless the right has been waived in a separation agreement or terminated by divorce,
a surviving spouse may by statute assert a claim:
i. For an intestate share. [G.S.29-13 et seq.]
ii. For a life estate. [G.S.29-30 et seq.]
iii. For an elective share. [G.S.30-3.1 et seq.]
iv. For a year’s allowance in the decedent’s personal property. [G.S.30-15 et seq.]
v. To administer the decedent’s estate. [G.S.28A-4-1.]
b. A surviving spouse may waive or release by agreement the statutory rights listed
above.
i. e surviving spouse may waive the right to claim an elective share, wholly or
partially, before or after marriage, with or without consideration, by a writ-
ten waiver signed by the surviving spouse. [G.S.30-3.6(a).] e waiver may be
included as part of another document, such as a prenuptial agreement or a sepa-
ration agreement.
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ii. Widow found to have released her rights to a life estate and a year’s allowance
by premarital agreement. [In re Estate of Cline, 103 N.C. App. 83, 404 S.E.2d
178 (1991) (judgment awarding widow a life estate reversed based on premar-
ital agreement in which she relinquished all claim to any property of husband;
widow also barred from recovering a year’s allowance by same agreement).]
iii. Parties found to have contracted away their right to dissent from a will. [In re
Estate of Pate, 119 N.C. App. 400, 459 S.E.2d 1 (prenuptial agreement barred
wife’s right to dissent; agreement was not terminated by cancellation of rst
wedding and was applicable to wedding occurring seven months later), review
denied, 341 N.C. 649, 462 S.E.2d 515 (1995); Brantley v.Watson, 113 N.C. App.
234, 438 S.E.2d 211 (1994) (widower in postnuptial agreement gave up right to
dissent from wife’s will).]
iv. e language of the agreement should be carefully considered. Just because
a party gave up one right does not mean that he or she gave up other or all
rights. [See Brantley v.Watson, 113 N.C. App. 234, 438 S.E.2d 211(1994) (sur-
viving spouse’s agreement in a postnuptial agreement not to dissent from other
spouse’s will was enforced, but surviving spouse was entitled to apply for a year’s
allowance because he did not expressly give up that right in the agreement). But
see In re Estate of Tucci, 94 N.C. App. 428, 380 S.E.2d 782 (1989) (considering
the eect of the parties’ temporary reconciliation, the court found that a separa-
tion and property settlement agreement barred the husband’s statutory right to
dissent from wife’s will, even though that right was not specically set out in the
agreement; agreement expressly provided that it was to remain in eect if the
parties reconciled), a’d per curiam, 326 N.C. 359, 388 S.E.2d 768 (1990).]
c. Waiver or release by agreement of an interest under the will of the other spouse.
i. A judgment of absolute divorce revokes provisions in a testator’s will in favor of
the testator’s former or purported former spouse unless otherwise specically
provided in the will. [G.S.31-5.4.]
ii. When husband died before divorce, wife’s waiver in a separation agreement of
her interest under husband’s will was valid and binding and prevented her from
taking under husband’s will. [Sedberry v.Johnson, 62 N.C. App. 425, 302 S.E.2d
924 (parties entered into a separation agreement in 1979, in which each spouse
waived and renounced rights under previously executed wills of the other
spouse, but had not divorced at time of husband’s death in 1980; waiver by wife
precluded her from taking under husband’s 1976 will), review denied, 309 N.C.
322, 307 S.E.2d 167 (1983).]
d. A separation agreement may obligate a decedent to make certain provisions in his
or her will, which the surviving spouse or intended beneciary may enforce. [See
Tyndall-Taylor v.Tyndall, 157 N.C. App. 689, 580 S.E.2d 58 (2003) (where separation
agreement obligated both spouses to separately execute wills that devised their inter-
ests in certain real estate to their son but husband failed to execute a will and died
intestate, surviving spouse and grandson, after death of parties’ son, the intended
beneciary, entitled to maintain an action to enforce the agreement).]
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6. Eect on right to partition.
a. In the absence of an equitable distribution of entirety property under G.S.50-20,
an ex-spouse (or tenant in common after divorce) may bring an action for partition.
[Hagler v.Hagler, 319 N.C. 287, 354 S.E.2d 228 (1987) (listing partition as one of sev-
eral rights or actions).]
b. A co-tenant’s right to partition can be contracted away in a deed of separation exe-
cuted while the property is still owned by the parties as tenants by the entirety.
[Hepler v.Burnham, 24 N.C. App. 362, 210 S.E.2d 509 (1975).]
c. e following language in a separation agreement has been found to waive the right
to partition:
i. Agreement allowed husband to occupy the marital residence and obligated him
to make mortgage payments while he lived there and further provided for an
equal division of the proceeds upon sale. [Diggs v.Diggs, 116 N.C. App. 95, 446
S.E.2d 873 (wife waived her right to partition), review denied, 338 N.C. 515, 452
S.E.2d 809 (1994).]
ii. Agreement allowed wife to live in or rent marital residence and obligated hus-
band to pay the monthly mortgage indebtedness, subject to certain conditions,
until such time as the parties mutually agreed to sell the property. [McDowell
v.McDowell, 61 N.C. App. 700, 301 S.E.2d 729 (1983) (husband impliedly lim-
ited his right to partition the property without the consent of the wife).]
iii. Agreement provided that the “parties own a home as ‘tenants by the entirety,’
in which husband will continue to live and make payments.” [Winborne v.Win-
borne, 54 N.C. App. 189, 189, 282 S.E.2d 487, 488 (1981) (petition for partition
should have been dismissed).]
iv. Agreement allowed wife to reside rent-free until emancipation of the parties’
minor child and obligated husband to continue mortgage payments. [Hepler
v.Burnham, 24 N.C. App. 362, 210 S.E.2d 509 (1975) (language impliedly limited
husband’s right to partition).]
7. Eect on interest in a retirement account.
a. Parties to a divorce may provide for division of retirement benets as part of a sep-
aration agreement. [G.S.50-20(d) (parties by written agreement may provide for
distribution of marital or divisible property); Gilmore v.Garner, 157 N.C. App. 664,
580 S.E.2d 15 (2003).]
b. However, wife’s waiver, in a divorce decree that was not a qualied domestic rela-
tions order, of her right to any interest in husband’s savings and investment plan
was inconsistent with plan document in which she was named as beneciary. After
employee spouse’s death, plan administrator properly distributed benets to wife in
accordance with the plan documents pursuant to bright-line requirement to follow
plan documents in distributing benets. [Kennedy v.Plan Adm’r for DuPont Sav.&
Inv.Plan, 555 U.S. 285, 129 S. Ct. 865 (2009) (husband never removed wife as ben-
eciary and there was no contingent beneciary; distribution to wife did not con-
stitute an assignment or alienation rendered void under anti-alienation provision of
Employee Retirement Income Security Act, 29 U.S.C. §1056(d)(1)).]
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G. Modifying a Separation Agreement
1. Generally.
a. An unincorporated separation agreement is a contract and can be modied only with
consent of the parties. [Walters v.Walters, 307 N.C. 381, 298 S.E.2d 338 (1983); Tic-
coni v.Ticconi, 161 N.C. App. 730, 589 S.E.2d 371 (2003); Torres v.McClain, 140 N.C.
App. 238, 535 S.E.2d 623 (2000). See also Lasecki v. Lasecki, 809 S.E.2d 296 (N.C.
Ct. App. 2017) (trial court has no authority to modify an unincorporated separation
agreement; order of specic performance for less than amount due under the agree-
ment did not aect party’s contractual liability); Danai v.Danai, 166 N.C. App. 279,
603 S.E.2d 168 (2004) (unpublished) (district court’s lack of jurisdiction to modify
an unincorporated separation agreement not cured by provision in the agreement
authorizing modication by a court of competent jurisdiction).]
b. Parties cannot orally modify a separation agreement. [Jones v.Jones, 162 N.C. App.
134, 590 S.E.2d 308 (2004) (citing Greene v.Greene, 77 N.C. App. 821, 336 S.E.2d 430
(1985)) (conversations between husband and wife in which they purportedly agreed
to modify the alimony provisions in their separation agreement, even if true, could
not modify that agreement).]
c. A modication must comply with the requirements of the statute, that is, it must be
in writing and must be acknowledged in accordance with G.S.52-10.1. [Kelley v. Kel-
ley, 798 S.E.2d 771 (N.C. Ct. App. 2017) (improperly executed modication was void
ab initio, so estoppel and ratication could not be applied to enforce the agreement);
Greene v.Greene, 77 N.C. App. 821, 336 S.E.2d 430 (1985) (oral modication did not
meet formalities and requirements of G.S.52-10.1).]
d. Because incorporated agreements are court orders, they cannot be modied by the
court except as specically authorized by a statute. [See, e.g., sections below regard-
ing modication of child support, child custody, and alimony.]
e. Relevant date for a change in circumstances when a separation agreement has been
incorporated into a divorce judgment is the date of incorporation and not the date
the agreement was executed. [Smart v.State ex rel. Smart, 198 N.C. App. 161, 678
S.E.2d 720 (2009).]
i. When a separation agreement has been incorporated into a divorce judgment,
the court must compare present circumstances to those existing on the date
of incorporation to determine whether there has been a substantial change in
circumstances. [Smart v.State ex rel. Smart, 198 N.C. App. 161, 678 S.E.2d 720
(2009) (citing Cavenaugh v.Cavenaugh, 317 N.C. 652, 347 S.E.2d 19 (1984))
(child support modication).]
ii. Where’s husband’s military discharge, and his corresponding reduction in
income, occurred prior to incorporation of the separation agreement into the
divorce decree, trial court properly entered summary judgment denying hus-
band’s motion for modication of child support. [Smart v.State ex rel. Smart,
198 N.C. App. 161, 678 S.E.2d 720 (2009) (change of circumstances between
execution of separation agreement and entry of divorce decree incorporating
agreement irrelevant to husband’s motion to modify child support).]
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2. Modifying provisions relating to child support.
a. Incorporated agreement.
i. G.S.50-13.7(a), addressing modication of an order for child support, applies
to the child support provisions of a separation agreement that has been incor-
porated into a divorce decree or other court order. [Beamer v.Beamer, 169
N.C. App. 594, 610 S.E.2d 220 (2005); Duey v.Duey, 113 N.C. App. 382, 438
S.E.2d 445 (1994). See also Cavenaugh v.Cavenaugh, 317 N.C. 652, 347 S.E.2d
19 (1986) (incorporated separation agreement may be modied on the basis of
changed circumstances).]
ii. Child support provisions in an incorporated separation agreement are modi-
able in the same manner as any other judgment involving child custody and
support. [Beamer v.Beamer, 169 N.C. App. 594, 610 S.E.2d 220 (2005); Tyndall
v.Tyndall, 80 N.C. App. 722, 343 S.E.2d 284 (citing Walters v.Walters, 307 N.C.
381, 298 S.E.2d 338 (1983)), review denied, 318 N.C. 420, 349 S.E.2d 606 (1986).]
iii. e circumstances of the parties must have changed subsequent to the date of
incorporation. [Cavenaugh v.Cavenaugh, 317 N.C. 652, 347 S.E.2d 19 (1986);
Smart v.State ex rel. Smart, 198 N.C. App. 161, 678 S.E.2d 720 (2009) (citing
Cavenaugh).] See Section IV.G.1.e, above.
iv. e parties may not extrajudicially modify the provisions of a child support
order through unilateral action or mutual agreement (other than a consent
order approved by the court). [Baker v.Showalter, 151 N.C. App. 546, 566 S.E.2d
172 (2002) (parties could not modify a child support order by oral agreement;
amount of support in incorporated separation agreement remained in eect).]
b. Unincorporated agreement.
i. G.S.50-13.7(a) does not apply to child support obligations that are included
in an unincorporated separation agreement or property settlement. [Pataky
v.Pataky, 160 N.C. App. 289, 585 S.E.2d 404 (2003), a’d per curiam in part,
review dismissed in part, 359 N.C. 65, 602 S.E.2d 360 (2004); Bottomley v.Bot-
tomley, 82 N.C. App. 231, 346 S.E.2d 317 (1986).]
ii. Absent the consent of both parties, a court has no authority to modify child
support provisions in a separation agreement that has not been incorporated in
a divorce decree, judgment, or consent order. [Lasecki v. Lasecki, 809 S.E.2d 296
(N.C. Ct. App. 2017) (trial court has no authority to modify support provision
in contract due to father’s inability to pay); Rose v.Rose, 108 N.C. App. 90, 422
S.E.2d 446 (1992) (trial court erred by modifying child support provision in an
unincorporated agreement without the consent of both parties). See also Danai
v.Danai, 166 N.C. App. 279, 603 S.E.2d 168 (2004) (unpublished) (in alimony
case, district court’s lack of jurisdiction to modify an unincorporated separation
agreement not cured by provision in the agreement authorizing modication by
a court of competent jurisdiction).]
iii. Either party to an unincorporated separation agreement may seek a court order
to establish child support pursuant to G.S.50-13.4 in an amount, scope, or dura-
tion dierent from that provided in the unincorporated agreement. [See Bottom-
ley v.Bottomley, 82 N.C. App. 231, 346 S.E.2d 317 (1986) (noncustodial parent
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sought a decrease in his support payments); Boyd v.Boyd, 81 N.C. App. 71, 343
S.E.2d 581 (1986) (custodial parent sought an increase in amount of support).]
iv. A party seeking an initial judicial determination of child support where the
parties have executed an unincorporated separation agreement need not show
changed circumstances between the time of the separation agreement and the
hearing, but must instead show the amount of support necessary to meet the
reasonable needs of the child at the time of the hearing. [Pataky v.Pataky, 160
N.C. App. 289, 585 S.E.2d 404 (2003) (citing Boyd v.Boyd, 81 N.C. App. 71, 343
S.E.2d 581 (1986)), a ’d per curiam in part, review dismissed in part, 359 N.C.
65, 602 S.E.2d 360 (2004). See also Lasecki v. Lasecki, 809 S.E.2d 296 (N.C. Ct.
App. 2017) (a court may not enter a child support order in an amount dierent
than the contract rate based on the parent’s inability to pay the amount owed
under the agreement; rather, the court is authorized to set a dierent amount if
necessary to meet the reasonable needs of the children).]
v. However, there is a rebuttable presumption that a mutually agreed upon
amount of child support in an unincorporated separation agreement is just and
reasonable. [Pataky v.Pataky, 160 N.C. App. 289, 585 S.E.2d 404 (2003), a ’d per
curiam in part, review dismissed in part, 359 N.C. 65, 602 S.E.2d 360 (2004). See
discussion in Section IV.F.4.f, above, on Pataky decision.]
vi. “To the extent an [unincorporated] agreement makes provision for the mainte-
nance and support of a child past his majority, it is beyond the inherent power
of the court to modify absent the consent of the parties,” and agreement is
“enforceable at law as any other contract.” [Shaner v.Shaner, 36 N.C. App. 586,
588, 244 S.E.2d 444, 446 (1978) (emphasis added) (citing Church v.Hancock, 261
N.C. 764, 136 S.E.2d 81 (1964)).]
c. For a discussion of the modiability of child support generally, see Modication of
Child Support Orders, Bench Book, Vol. 1, Chapter3, Part 3.
3. Modifying provisions relating to child custody.
a. Parents may contract concerning custody, but no contract will deprive the court of
inherent authority to protect and provide for minor children. [Hudson v.Hudson,
299 N.C. 465, 263 S.E.2d 719 (1980); Hennessey v.Duckworth, 231 N.C. App. 17, 22
n.4, 752 S.E.2d 194, 198 n.4 (2013) (citing Kiger v.Kiger, 258 N.C. 126, 129, 128 S.E.2d
235, 237 (1962)) (it is well-established that custody and support provisions in a sepa-
ration agreement are always subject to later modication by the court).]
b. A separation agreement will not prevent one party from subsequently ling an action
seeking court-ordered custody. [See Winborne v.Winborne, 41 N.C. App. 756, 255
S.E.2d 640 (despite existence of agreement, the trial court has a duty to award cus-
tody in accordance with the best interest of the child), review denied, 298 N.C. 305,
259 S.E.2d 918 (1979).]
c. However, if the separation agreement was incorporated into a court order, modica-
tion requires a showing of changed circumstances since the date of incorporation in
accordance with G.S.50-13.7. [Tyndall v.Tyndall, 80 N.C. App. 722, 343 S.E.2d 284
(modication of child support), review denied, 318 N.C. 420, 349 S.E.2d 606 (1986);
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Barnes v.Barnes, 55 N.C. App. 670, 286 S.E.2d 586 (1982), overruled on other grounds
by Pulliam v.Smith, 348 N.C. 616, 501 S.E.2d 898 (1998).]
d. For a discussion of the modiability of child custody orders generally, see Child
Custody, Bench Book, Vol. 1, Chapter4.
4. Modifying provisions relating to alimony and postseparation support.
a. Modication of an alimony award is in the discretion of the trial judge and will not be
disturbed absent an abuse of discretion. [Lemons v.Lemons, 112 N.C. App. 110, 434
S.E.2d 638 (1993), review denied, 335 N.C. 556, 441 S.E.2d 117 (1994).]
b. Unincorporated agreements.
i. Alimony provisions of a separation agreement that has not been incorporated
into a court order cannot be modied by the court, absent the consent of both
parties. [Lasecki v. Lasecki, 809 S.E.2d 296 (N.C. Ct. App. 2017) (even when trial
court orders specic performance in an amount less than that provided in the
contract, party remains liable for full amount owed pursuant to terms of the
contract); DeGree v.DeGree, 72 N.C. App. 668, 325 S.E.2d 36, review denied,
313 N.C. 598, 330 S.E.2d 607 (1985); Condellone v.Condellone, 129 N.C. App.
675, 501 S.E.2d 690 (unincorporated agreement could not be modied under
G.S.Chapter50 based upon changed circumstances), review denied, 349 N.C.
354, 517 S.E.2d 889 (1998). See also G.S.50-16.9(a) (emphasis added) (stating
that only “[a]n order of a court of this State for alimony or post separation sup-
port...may be modied or vacated”).]
c. Incorporated agreements.
i. A court may modify support provisions in an incorporated separation agree-
ment only if the moving party shows two things:
(a) e support provisions in the agreement are “true” alimony and not prop-
erty settlement [See Marks v.Marks, 316 N.C. 447, 342 S.E.2d 859 (1986);
Holcomb v.Holcomb, 132 N.C. App. 744, 513 S.E.2d 807 (1999); see also
Underwood v.Underwood, 365 N.C. 235, 717 S.E.2d 361 (2011) (citing
Marks) (in the context of a consent judgment, holding that the parties
unambiguously intended support provisions to be alimony, making the pay-
ments subject to modication and termination).] and
(b) A motion has been led pursuant to G.S.50-16.9 and there has been a sub-
stantial change of circumstances since the agreement was incorporated.
ii. “True” alimony.
(a) If periodic payments set out in an incorporated agreement are reciprocal
consideration for, and inseparable from, provisions in the agreement set-
tling property matters:
(1) e order is an integrated agreement;
(2) e periodic payments are not in fact “true” alimony payments
because they are integrated with and become part of the property set-
tlement provisions; and
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(3) e provisions for periodic payments are not modiable. [Marks v.
Marks, 316 N.C. 447, 455, 342 S.E.2d 859, 864 (1986); Holcomb v.
Holcomb, 132 N.C. App. 744, 513 S.E.2d 807 (1999); Lemons v.Lemons,
112 N.C. App. 110, 434 S.E.2d 638 (1993) (citing Marks and Hayes
v.Hayes, 100 N.C. App. 138, 394 S.E.2d 675 (1990)), review denied, 335
N.C. 556, 441 S.E.2d 117 (1994); Rogers v.Rogers, 111 N.C. App. 606,
432 S.E.2d 907 (1993); Hayes (citing White v.White, 296 N.C. 661, 252
S.E.2d 698 (1979), and Marks).]
(b) If periodic payments set out in an incorporated agreement are not recipro-
cal consideration for, and are separable from, provisions in the agreement
settling property matters:
(1) e order is not integrated;
(2) e periodic payments are “true” alimony payments; and
(3) e provisions for periodic payments are modiable upon a showing
of changed circumstances. [Underwood v.Underwood, 365 N.C. 235,
717 S.E.2d 361 (2011) (citing Marks v.Marks, 316 N.C. 447, 342 S.E.2d
859 (1986)) (in the context of a consent judgment); Marks; Lemons
v.Lemons, 112 N.C. App. 110, 434 S.E.2d 638 (1993) (citing Marksand
Hayes v.Hayes, 100 N.C. App. 138, 394 S.E.2d 675 (1990)), review
denied, 335 N.C. 556, 441 S.E.2d 117 (1994); Rogers v.Rogers, 111 N.C.
App. 606, 432 S.E.2d 907 (1993); Hayes (citing White v.White, 296
N.C. 661, 252 S.E.2d 698 (1979), and Marks).]
(c) True alimony provisions in an incorporated agreement are modiable,
notwithstanding express language to the contrary. [Acosta v.Clark, 70 N.C.
App. 111, 318 S.E.2d 551 (1984) (support provisions that were separable
and independent were modiable even though agreement provided that the
alimony provisions were not to be modied except by the consent of both
parties in writing).]
(d) True alimony provisions in a consent order may be modied and termi-
nated upon cohabitation despite a provision providing that support pay-
ments to wife were given in reciprocal consideration for the agreement of
the parties as to equitable distribution and property settlement. is was
so even though the consent order provided that payments terminated upon
wife’s death or remarriage and did not speak to cohabitation. [Underwood
v.Underwood, 365 N.C. 235, 717 S.E.2d 361 (2011) (parties cannot, by
including a reciprocal consideration provision in their agreement, immu-
nize alimony payments from modication or termination under applica-
ble statutes where rest of agreement clearly indicated that payments were
alimony payments).]
(e) For more on whether payments to a party are “true alimony,” subject to
termination, or are payments exchanged for property settlement provisions,
see Postseparation Support and Alimony, Bench Book, Vol. 1, Chapter2.
iii. Changed circumstances.
(a) If true alimony, then court can modify pursuant to G.S.50-16.9.
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(b) e power of the court to modify an alimony order is not power to grant a
new trial or to retry the issues of the original hearing, but only to adapt the
decree to some distinct and denite change in the nancial circumstances
of the parties. [Cunningham v.Cunningham, 345 N.C. 430, 480 S.E.2d 403
(1997) (party’s status as a dependent spouse is not properly reconsidered
upon a motion to modify alimony).]
(c) Only those changed circumstances that relate to the “factors used in the
original determination of the amount of alimony awarded” are relevant.
[Kowalick v.Kowalick, 129 N.C. App. 781, 785, 501 S.E.2d 671, 674 (1998)
(quoting Cunningham v.Cunningham, 345 N.C. 430, 435, 480 S.E.2d 403,
406 (1997)). See Cunningham (purpose of comparing circumstances or facts
considered in entering original order and the present circumstances is to
ascertain whether a material change of circumstances has occurred).]
(d) e change in circumstances must occur subsequent to the date of incor-
poration. Changes in circumstances occurring between the time the agree-
ment is executed and the time the agreement becomes a court order are
irrelevant to modication. [Cavenaugh v.Cavenaugh, 317 N.C. 652, 347
S.E.2d 19 (1986) (obligations in the agreement are purely contractual before
incorporation); Smart v.State ex rel. Smart, 198 N.C. App. 161, 678 S.E.2d
720 (2009) (citing Cavenaugh).]
(e) A change in circumstances sucient for modication would not ordinarily
be a change that was contemplated by the original agreement and for which
a provision was made therein for appropriate adjustment. [Cunningham
v.Cunningham, 345 N.C. 430, 480 S.E.2d 403 (1997) (citing Britt v.Britt, 49
N.C. App. 463, 271 S.E.2d 921 (1980)) (when agreement contained an auto-
matic adjustment provision, the fact that husband’s income had changed
since the time of the original agreement was not sucient for modication
of the alimony order absent a showing that the change in income hindered
his ability to meet his alimony obligation).]
(f) Where an alimony order originates from a private agreement between the
parties, there may be few, if any, ndings of fact as to the circumstances or
factors in the court decree awarding alimony. Determining whether there
has been a material change in the parties’ circumstances sucient to jus-
tify a modication of the alimony order may require the trial court to make
ndings of fact as to what the original circumstances or factors were in
addition to what the current circumstances or factors are. [Cunningham
v.Cunningham, 345 N.C. 430, 480 S.E.2d 403 (1997).]
iv. For a discussion of the modiability of alimony generally, see Postseparation
Support and Alimony, Bench Book, Vol. 1, Chapter2.
v. Procedure for determining whether an agreement is an integrated property
settlement.
(a) To resolve the question of whether an agreement is integrated or noninte-
grated, a court looks to the intention of the parties. [Lemons v.Lemons, 103
N.C. App. 492, 406 S.E.2d 8 (1991) (citing Hayes v.Hayes, 100 N.C. App.
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138, 394 S.E.2d 675 (1990)).] e intent of the parties is determined from
the language of the agreement, its subject matter and purpose, and the
parties’ situation at the time of its execution. [White v.White, 296 N.C. 661,
252 S.E.2d 698 (1979).]
(b) Procedure when agreement clearly and unequivocally states the parties’
intent.
(1) e court of appeals has held that if the agreement contains an
unequivocal clause regarding integration or unequivocal integration
language, that language controls and there is no need for an eviden-
tiary hearing on integration. [Lemons v.Lemons, 103 N.C. App. 492,
406 S.E.2d 8 (1991) (citing Morrison v.Morrison, 102 N.C. App. 514,
402 S.E.2d 855 (1991)).] However, the state supreme court held that an
agreement will not be considered integrated even when it contains a
clear integration clause if the rest of the agreement clearly shows that
payments were considered to be alimony by the parties. [Underwood
v.Underwood, 365 N.C. 235, 717 S.E.2d 361 (2011).]
(2) When the agreement is clear and unambiguous and leaves no room
for construction, construction of the agreement is a matter of law.
[Rudi sill v.Rudisill, 102 N.C. App. 280, 401 S.E.2d 818 (citing Allison
v.Allison, 51 N.C. App. 622, 277 S.E.2d 551 (1981)), review denied, 329
N.C. 790, 408 S.E.2d 525 (1991); Underwood v.Underwood, 365 N.C.
235, 717 S.E.2d 361 (2011) (no hearing on intent of parties required
where language of agreement clearly showed that payments were
alimony).]
(3) For examples of unequivocal integration clauses, see Acosta v.Clark,
70 N.C. App. 111, 318 S.E.2d 551 (1984) (agreement provided that
provisions for payment of alimony to wife were independent of any
division or agreement for division of property between the parties and
should not for any purpose be deemed to be a part of or merged in or
integrated with a property settlement of the parties); Britt v.Britt, 36
N.C. App. 705, 711, 245 S.E.2d 381, 385 (1978) (agreement provided
that “provisions for the support, maintenance and alimony of wife
are independent of any division or agreement for division of prop-
erty...and shall not for any purpose be deemed to be a part of or
merged in or integrated with a property settlement of the parties”);
Cunningham v.Cunningham, 121 N.C. App. 771, 468 S.E.2d 466 (1996)
(agreement provided that alimony was separate from the property
settlement), rev’d in part on other grounds, 345 N.C. 430, 480 S.E.2d
403 (1997). For an example of unequivocal integration language, see
Morrison v.Morrison, 102 N.C. App. 514, 402 S.E.2d 855 (1991) (pro-
vision in the agreement relating to the release of spousal property
rights included specic language “AND FOR THE CONSIDERATION
AFORESAID” and was preceded by a provision wherein parties agreed
to live separate and apart; waiver of property rights was given in
consideration of agreement to live separate and apart). Cf. Holcomb
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v.Holcomb, 132 N.C. App. 744, 746, 513 S.E.2d 807, 809 (1999) (clause
titled “ENTIRE AGREEMENT,” which provided that the agreement
contained the entire understanding of the parties and that there were
“no representations, warranties, covenants, or undertakings other than
those expressed and set out [in the agreement],” was a standard merger
clause designed to merge prior discussions, negotiations, and repre-
sentations into the agreement and not an integration clause).]
(c) Procedure when agreement does not clearly and unequivocally state the
parties’ intent.
(1) In the absence of an unequivocal integration or nonintegration clause,
the court is to hold an evidentiary hearing to determine the intent of
the parties. [Lemons v.Lemons, 103 N.C. App. 492, 406 S.E.2d 8 (1991)
(citing Hayes v.Hayes, 100 N.C. App. 138, 394 S.E.2d 675 (1990))(error
for trial court to refuse to allow evidence to determine the intent of
the parties regarding whether provisions of the agreement were sep-
arable or integrated); Hayes, 100 N.C. App. at 148, 394 S.E.2d at 680
(error for the trial court to refuse to hold an evidentiary hearing where
there were no “explicit, unequivocal provisions on integration or
non-integration”).]
(2) At the hearing, the court must apply a presumption that the provi-
sions in an incorporated separation agreement are separable and not
integrated; this presumption is rebuttable by the greater weight of
the evidence. [White v.White, 296 N.C. 661, 252 S.E.2d 698 (1979);
Holcomb v.Holcomb, 132 N.C. App. 744, 513 S.E.2d 807 (1999) (citing
White); Williams v.Williams, 120 N.C. App. 707, 463 S.E.2d 815
(1995) (presumption of separability prevails unless a party proves by a
preponderance of the evidence that the parties intended an integrated
agreement), a ’d per curiam, 343 N.C. 299, 469 S.E.2d 553 (1996). See
Marks v.Marks, 316 N.C. 447, 342 S.E.2d 859 (1986) (the White pre-
sumption of separability is required in those cases in which it properly
arises).]
(3) e party contending that support and property settlement provisions
are integrated has the burden of proving that the parties intended an
integrated agreement. [White v.White, 296 N.C. 661, 252 S.E.2d 698
(1979) (party opposing modication has the burden of proof on issue
of separability; standard is a preponderance of the evidence); Holcomb
v.Holcomb, 132 N.C. App. 744, 513 S.E.2d 807 (1999) (citing White);
Lemons v. Lemons, 112 N.C. App. 110, 434 S.E.2d 638 (1993), review
denied, 335 N.C. 556, 441 S.E.2d 117 (1994).]
(4) A trial court may admit parol evidence regarding the situation of the
parties at the time they executed their separation agreement and prop-
erty settlement. [Love v.Mewborn, 79 N.C. App. 465, 339 S.E.2d 487,
review denied, 317 N.C. 704, 347 S.E.2d 43 (1986).] See Section IV.E.2,
above, for more on extrinsic evidence.
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(5) At the evidentiary hearing on integration, evidence of the negotiation
between the parties is admissible to clarify the provisions of the order.
[Hayes v.Hayes, 100 N.C. App. 138, 394 S.E.2d 675 (1990) (citing Rowe
v.Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982)).]
(6) If the presumption of separability is not rebutted, the agreement is not
integrated. [Williams v.Williams, 120 N.C. App. 707, 463 S.E.2d 815
(1995), a’d per curiam, 343 N.C. 299, 469 S.E.2d 553 (1996).]
(7) If the presumption of separability is rebutted, the agreement is inte-
grated. [See Stegall v.Stegall, 100 N.C. App. 398, 397 S.E.2d 306 (1990),
review denied, 328 N.C. 274, 400 S.E.2d 461 (1991).]
(8) When it is not clear whether the provisions of a separation agreement
are integrated, summary judgment is not appropriate. [White v.Bow-
ers, 101 N.C. App. 646, 400 S.E.2d 760 (1991) (where no clause in the
agreement in question addressed integration, court must look to inten-
tion of the parties, making summary judgment inappropriate).]
(d) Cases nding an agreement integrated.
(1) Trial court found that property settlement and alimony payments were
mutually dependent. [Love v.Mewborn, 79 N.C. App. 465, 339 S.E.2d
487, review denied, 317 N.C. 704, 347 S.E.2d 43 (1986).]
(e) Cases nding an agreement not integrated.
(1) When a consent order methodically enumerated stipulations and nd-
ings that established the essential elements of an alimony award, set
out the parties’ consent to support provisions that complied with the
statutory denition of “alimony” which were listed separately from the
order’s property provisions, and frequently used the term “alimony”,
support provisions in the order were alimony, which the trial court
properly terminated pursuant to G.S.50-16.9(b) upon wife’s cohabita-
tion. [Underwood v.Underwood, 365 N.C. 235, 717 S.E.2d 361 (2011)
(consent order “unambiguously” demonstrated the parties’ intent that
payments to wife were alimony).]
(2) Language of the contract, its purpose, and the respective circum-
stances of the parties demonstrated the intent of the parties to sep-
arate the support and property provisions. [Rudisill v.Rudisill, 102
N.C. App. 280, 401 S.E.2d 818 (1991) (payment of alimony to wife was
based on husband’s abandonment and fact that husband was able-bod-
ied wage-earner and wife was unemployed and ill; court found that
husband was a supporting spouse and able to pay alimony and that
wife was a dependent spouse; contract language indicated that the
property provision was additional consideration and not inseparable
consideration).]
(3) Court properly found that provisions relating to the form of ownership
and the possession of the family home were negotiated separately from
the question of alimony. [Lemons v. Lemons, 112 N.C. App. 110, 434
S.E.2d 638 (1993), review denied, 335 N.C. 556, 441 S.E.2d 117 (1994).]
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5. Modifying provisions for division of property.
a. Incorporated agreements.
i. Property settlement provisions of a separation agreement included in a consent
decree are not modiable without the consent of both parties, regardless of
whether the provisions are part of an integrated agreement. [White v.White, 296
N.C. 661, 252 S.E.2d 698 (1979) (indicating provisions not modiable); Holsom-
back v.Holsomback, 273 N.C. 728, 161 S.E.2d 99 (1968) (agreed-upon division
of property, a separable provision, set out in an incorporated consent judgment,
absent the consent of the parties thereto, could be modied or set aside only for
fraud or mistake in an independent action); Rudisill v.Rudisill, 102 N.C. App.
280, 401 S.E.2d 818 (once house passed to wife under a consent judgment, court
could not later modify the property division by ordering husband to pay wife
for repairs on the house) review denied, 329 N.C. 790, 408 S.E.2d 525 (1991);
Hayes v.Hayes, 100 N.C. App. 138, 394 S.E.2d 675 (1990) (citing Holsomback);
Reavis v.Reavis, 82 N.C. App. 77, 345 S.E.2d 460 (1986) (court had no authority
to order a partial refund of a fully executed lump sum payment that represented,
at least in part, a property settlement); Cobb v.Cobb, 54 N.C. App. 230, 282
S.E.2d 591 (1981) (citing Holsomback) (determinations of property rights in an
incorporated separation agreement are beyond the power of the court to modify
without the consent of both parties), appeal dismissed, review denied, 304 N.C.
724, 288 S.E.2d 809 (1982); 3 Lee’s North Carolina Family Law §14.31c (5th ed.
2002) (upon incorporation, court has no statutory power to modify property
provisions in an integrated agreement). But cf. Walters v.Walters, 307 N.C. 381,
385, 298 S.E.2d 338, 341 (1983) (dicta suggesting that provisions that “concern
some aspect of a property settlement” may be modied “only so long as the
court’s order remains unsatised as to that specic provision”).]
b. Unincorporated agreements.
i. An unincorporated separation agreement is a contract and cannot be modied
absent the consent of the parties. [Rose v.Rose, 108 N.C. App. 90, 422 S.E.2d 446
(1992) (court erred when it modied the property settlement provisions in an
unincorporated agreement to award a monthly amount of equity in the family
residence as child support).]
H. Reconciliation
1. Reconciliation occurs when there is a resumption of marital relations.
2. Denition of “resumption of marital relations.”
a. “Resumption of marital relations” is dened as the voluntary renewal of the husband
and wife relationship, as shown by the totality of the circumstances. [G.S.52-10.2.]
b. Isolated incidents of sexual intercourse between the parties do not constitute
resumption of marital relations. [G.S.52-10.2.]
c. ere may be a resumption of marital relations even though the relationship lasts
only a short time. [See Casella v.Estate of Casella, 200 N.C. App. 24, 682 S.E.2d
455 (2009) (nding that parties reconciled for three-week period before husband’s
death).]
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d. e relevant time frame to determine reconciliation is the period after which a party
contends that the parties have reconciled, and the evidence presented should speak
to the period following the date of alleged reconciliation. [Casella v.Estate of Casella,
200 N.C. App. 24, 682 S.E.2d 455 (2009).]
e. Whether parties have reconciled is determined by one of two methods:
i. When the evidence is undisputed and there is substantial objective indicia that
the parties held themselves out as husband and wife, the trial court may nd
reconciliation as a matter of law. e trial court does not need to consider the
subjective intent of the parties. [Casella v.Estate of Casella, 200 N.C. App. 24,
682 S.E.2d 455 (2009).]
ii. When the evidence of reconciliation is in dispute, the trial court must consider
the subjective intent of the parties. [Casella v.Estate of Casella, 200 N.C. App.
24, 682 S.E.2d 455 (2009).]
f. at parties had reconciled was established by undisputed evidence that the par-
ties slept in the same bed, that wife assumed responsibility for the intimate care of
the husband, that both parties indicated to others that they had reconciled and held
themselves out to the public in a manner that suggested that they were husband and
wife, and others interacted with plainti as if she were defendant’s wife, and that a
substantial amount of property passed to wife outside of husband’s will. Trial court
properly determined that the facts were not in dispute and that objective evidence
established that the parties had reconciled as a matter of law. [Casella v.Estate of
Casella, 200 N.C. App. 24, 682 S.E.2d 455 (2009) (equitable distribution claim by
estate of husband against wife dismissed).]
g. Four hours on each of six evenings spent together in the former marital home eat-
ing dinner and visiting with the parties’ children in combination with three or four
“isolated acts” of sexual intercourse did not constitute resumption of marital rela-
tions under G.S.52-10.2. [Fletcher v.Fletcher, 123 N.C. App. 744, 474 S.E.2d 802
(1996) (wife never “moved” back into or resumed cohabitation in the marital home,
but instead maintained her separate residence; time period involved was brief; no
evidence that parties shared chores or household responsibilities, that they accom-
panied each other to public places or held themselves out as husband and wife, or
indicated to others that their problems had been resolved or that they desired to
terminate the separation), review denied, 345 N.C. 640, 483 S.E.2d 706 (1997).]
3. Eect of reconciliation.
a. Support provisions in a separation agreement.
i. e general rule is that executory provisions of a separation agreement for
support and maintenance are terminated upon the resumption of marital rela-
tions. [In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976); Campbell
v.Campbell, 234 N.C. 188, 66 S.E.2d 672 (1951); Williams v.Williams, 120 N.C.
App. 707, 463 S.E.2d 815 (1995), a ’d per curiam, 343 N.C. 299, 469 S.E.2d 553
(1996).]
ii. Executory provisions of a separation agreement are those in which “a party
binds himself to do or not to do a particular thing in the future.” [Carlton
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v.Carlton, 74 N.C. App. 690, 693, 329 S.E.2d 682, 684 (1985) (emphasis in orig-
inal) (quoting Whitt v.Whitt, 32 N.C. App. 125, 129–30, 230 S.E.2d 793, 796
(1977)).]
iii. Executed support provisions are not aected by reconciliation. [Potts v.Potts,
24 N.C. App. 673, 211 S.E.2d 815 (1975) (noting that a complete waiver of
future support may be considered fully executed if given in return for a lump
sum payment that was made in full before reconciliation); Schultz v.Schultz,
107 N.C. App. 366, 420 S.E.2d 186 (1992) (husband’s duty under a consent
judgment to pay alimony up to the date of reconciliation, as an executed portion
of the consent judgment, remained enforceable through the court’s contempt
power), review denied, 333 N.C. 347, 426 S.E.2d 710 (1993).]
iv. “Executed” provisions are “those that have been carried out and which require
no future performance.” [Carlton v.Carlton, 74 N.C. App. 690, 693, 329 S.E.2d
682, 684 (1985) (quoting Whitt v.Whitt, 32 N.C. App. 125, 130, 230 S.E.2d 793,
796 (1977)).]
v. If a party has not complied with a provision for payment of support up to the
date of reconciliation, the provision remains enforceable. [See Schultz v.Schultz,
107 N.C. App. 366, 420 S.E.2d 186 (1992) (trial court may nd that provision
for payment of future alimony in an incorporated agreement is no longer valid
because of reconciliation while holding a party in contempt for past violations
of the provision; order nding defendant in civil contempt for failure to pay past
due alimony upheld), review denied, 333 N.C. 347, 426 S.E.2d 710 (1993).]
vi. For agreements executed during separation pursuant to G.S.52-10(a1) on or
after June 19, 2013, reconciliation will not completely void any waiver, release,
or establishment of support rights and obligations. Any such waiver, release, or
establishment will remain valid following a period of reconciliation and subse-
quent separation. [G.S.52-10(a1).] It is unclear whether this provision will aect
the law relating to separation agreements entered pursuant to G.S.52-10.1.
b. Property settlement provisions.
i. Generally, property settlement agreements are not aected by reconciliation.
[See Porter v.Porter, 217 N.C. App. 629, 720 S.E.2d 778 (2011) (agreement
executed in 1988, in which parties relinquished and released all rights in each
other’s real and personal property, barred equitable distribution even though
parties reconciled following execution of the agreement and lived together until
their nal separation in 2005; 1988 agreement, incorporated in 2007 divorce
judgment, provided that it remained in eect if the parties reconciled unless
otherwise provided by the parties in writing after reconciliation).]
ii. However, if the property settlement was negotiated as “reciprocal consideration”
for the agreement to live separate and apart, the provisions are deemed inte-
grated and the resumption of marital relations will terminate the executory pro-
visions of the property settlement agreement. [Morrison v.Morrison, 102 N.C.
App. 514, 402 S.E.2d 855 (1991) (when property settlement was conditioned
upon agreement to live separate and apart, resumption of marital relations
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terminated executory provisions); Stegall v.Stegall, 100 N.C. App. 398, 397
S.E.2d 306 (1990), review denied, 328 N.C. 274, 400 S.E.2d 461 (1991).]
iii. If the property settlement was not negotiated as “reciprocal consideration” for
the agreement to live separate and apart, the provisions of the property settle-
ment are deemed separate and not integrated and the resumption of marital
relations will not aect either executed or executory provisions of a property
settlement. [Morrison v.Morrison, 102 N.C. App. 514, 402 S.E.2d 855 (1991).]
For procedure for determining whether the agreement is integrated, see Section
IV.G.4.c.v, above.
iv. When an agreement calls for immediate performance, a party may not render a
provision executory by wrongfully refusing to comply. In those circumstances,
the provision is not invalidated by subsequent reconciliation. [Whitt v.Whitt, 32
N.C. App. 125, 230 S.E.2d 793 (1977) (where agreement called for husband and
wife to contemporaneously execute deeds of conveyance, which husband did but
wife did not, wife’s unfullled duty to convey was not executory and thus termi-
nated by subsequent reconciliation; wife’s failure to convey constituted a breach
of an executed contract).]
v. Executed property provisions are not terminated by reconciliation.
(a) Provision that required husband to convey his interest in the marital res-
idence to the wife was executed before reconciliation and therefore not
terminated by the parties’ resumption of marital relations. [Case v.Case, 73
N.C. App. 76, 325 S.E.2d 661, review denied, 313 N.C. 597, 330 S.E.2d 606
(1985). See also Potts v.Potts, 24 N.C. App. 673, 211 S.E.2d 815 (1975) (pro-
visions dividing property and mutually waiving alimony executed before
reconciliation and thus not aected thereby), and Jones v.Lewis, 243 N.C.
259, 90 S.E.2d 547 (1955) (recognizing that reconciliation by the parties to a
separation agreement would not revoke or invalidate a duly executed deed
of conveyance in a property settlement between the parties).]
(b) EXCEPTION: Provisions in a separation agreement that were executed
before reconciliation may be void if the evidence shows an intent by the
parties to cancel those provisions. In that case, equitable distribution might
still be allowed. [Stegall v.Stegall, 100 N.C. App. 398, 397 S.E.2d 306 (1990)
(citing Carlton v.Carlton, 74 N.C. App. 690, 329 S.E.2d 682 (1985)), review
denied, 328 N.C. 274, 400 S.E.2d 461 (1991).]
c. Provisions terminated upon a nding that parties had resumed marital relations.
i. Provisions in a separation agreement waiving certain estate rights. [In re Estate
of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976) (reconciliation terminated pro-
visions of a separation agreement waiving wife’s right to administer, and share
in, husband’s estate); In re Estate of Archibald, 183 N.C. App. 274, 644 S.E.2d 264
(2007) (citing Adamee) (reconciliation rescinded husband’s waiver of his right to
inherit from wife’s estate; award of an elective share to the husband upheld; also
noting, as support for arming award to husband of an elective share, language
in separation agreement tracking common law rule that upon reconciliation,
executory provisions of the agreement were cancelled and rescinded).]
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ii. Provisions in separation agreement whereby wife relinquished all rights and
interests in property “hereafter acquired” by her husband and in which the
parties agreed to a “full, complete and nal settlement of any property rights
that might arise in the future.” [Carlton v.Carlton, 74 N.C. App. 690, 692, 329
S.E.2d 682, 684 (1985) (wife’s promise not to make a claim in the future against
husband’s future property was executory; if determination made on remand
that parties had resumed marital relationship, equitable distribution of property
acquired after reconciliation would be proper).]
iii. Provisions for future child support in an unincorporated separation agreement.
[Campbell v.Campbell, 234 N.C. 188, 66 S.E.2d 672 (1951) (wife could not
base her claim for child support on provision in separation agreement that was
rescinded, at least as to the future, by resumption of cohabitation).] For more
on child support provisions in incorporated and unincorporated separation
agreements, see Procedure for Initial Child Support Orders, Bench Book, Vol. 1,
Chapter3, Part 2.
iv. If agreement at issue was a separation agreement, provisions for future alimony
payments. [Williams v.Williams, 120 N.C. App. 707, 712, 463 S.E.2d 815, 819
(1995) (noting as “well established that resumption of the marital relationship
voids executory portions of a separation agreement”), a ’d per curiam, 343 N.C.
299, 469 S.E.2d 553 (1996).] NOTE: G.S.52-10(a1), added by S.L. 2013-140, §1,
eective June 19, 2013, allows a husband and wife to enter into a marital con-
tract, during a period of separation, waiving, releasing, or establishing rights and
obligations to postseparation support, alimony, or spousal support, which pro-
visions remain valid following a period of reconciliation and subsequent separa-
tion. It is unclear whether this provision will aect the law relating to separation
agreements entered pursuant to G.S.52-10.1.
d. Eect of a subsequent separation on an agreement rescinded by reconciliation.
i. A subsequent separation of the parties will not revive a rescinded separation
agreement. [In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976) (citing
Campbell v.Campbell, 234 N.C. 188, 66 S.E.2d 672 (1951)); Williams v.Wil-
liams, 120 N.C. App. 707, 463 S.E.2d 815 (1995) (citing Hand v.Hand, 46 N.C.
App. 82, 264 S.E.2d 597 (1980)), a ’d per curiam, 343 N.C. 299, 469 S.E.2d 553
(1996).]
ii. But see G.S.52-10(a1), added by S.L. 2013-140, §1, eective June 19, 2013,
which allows a husband and wife to enter into a marital contract, during a
period of separation, waiving, releasing, or establishing rights and obligations
to postseparation support, alimony, or spousal support, which provisions
remain valid following a period of reconciliation and subsequent separation. It
is unclear whether this provision will aect the law relating to separation agree-
ments entered pursuant to G.S.52-10.1.
4. Parties may not alter the eect of reconciliation on a separation agreement.
a. Contracts providing that a reconciliation will not aect the terms of a property
settlement are not contrary to law or public policy. [Morrison v.Morrison, 102 N.C.
App. 514, 402 S.E.2d 855 (1991); In re Estate of Tucci, 94 N.C. App. 428, 380 S.E.2d
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782 (1989) (reconciliation did not rescind husband’s release of his right to dissent
from wife’s will; a spouse’s statutory right to dissent from the other spouse’s will is a
property right, and the separation and property settlement agreement here expressly
provided that it was to remain in eect if the parties reconciled), a ’d per curiam,
326 N.C. 359, 388 S.E.2d 768 (1990).]
b. However, contracts that provide that reconciliation will not aect the terms of a
separation agreement violate the policy behind separation agreements and are void.
[Morrison v.Morrison, 102 N.C. App. 514, 402 S.E.2d 855 (1991). But cf. Porter v.Por-
ter, 217 N.C. App. 629, 720 S.E.2d 778 (2011) (equitable distribution was barred by
property settlement agreement executed during a prior separation of the parties and
later incorporated into a divorce judgment, where agreement expressly provided that
it remained in eect if the parties reconciled unless otherwise provided by the parties
in writing after reconciliation).]
c. Provision in a separation agreement that executory provisions were to be cancelled
and rescinded upon reconciliation was valid and was cited as support for the court’s
conclusion that a waiver of inheritance rights was rescinded and cancelled by the
parties’ reconciliation. [In re Estate of Archibald, 183 N.C. App. 274, 644 S.E.2d 264
(2007) (citing In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976)) (following
holding from Adamee that a reconciliation rescinds and nullies a separation agree-
ment’s waiver of estate rights; also noting, as support for arming award to husband
of an elective share, language in separation agreement tracking the common law rule
that upon reconciliation, executory provisions of the agreement were “cancelled and
rescinded”).]
d. But see G.S.52-10(a1), added by S.L. 2013-140, §1, eective June 19, 2013, which
allows a husband and wife to enter into a marital contract, during a period of separa-
tion, waiving, releasing, or establishing rights and obligations to postseparation sup-
port, alimony, or spousal support, which provisions remain valid following a period
of reconciliation and subsequent separation. It is unclear whether this provision will
aect the law relating to separation agreements entered pursuant to G.S.52-10.1.
I. Enforcing a Separation Agreement
1. What law governs.
a. e general rule is that the validity and construction of a separation agreement
is determined by the law of the place where the agreement was executed. [Davis
v.Davis, 269 N.C. 120, 152 S.E.2d 306 (1967) (Florida law determined the validity and
construction of an agreement executed in Florida); Behr v.Behr, 46 N.C. App. 694,
266 S.E.2d 393 (1980) (citing Medders v.Medders, 40 N.C. App. 681, 254 S.E.2d 44
(1979)) (validity and construction of a separation agreement entered into in another
state governed by the law of that state).]
b. Choice of law. Choice of law provisions contained in an agreement are valid and must
be given eect. [Franzen v.Franzen, 135 N.C. App. 369, 520 S.E.2d 74 (1999) (where
parties specied Ohio law as controlling, court looked to Ohio law to construe a pre-
marital agreement).]
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i. e parties’ choice of law is generally binding as long as the parties had a rea-
sonable basis for their choice and the law of the chosen state does not violate a
fundamental public policy of the state or other applicable law. [Behr v.Behr, 46
N.C. App. 694, 266 S.E.2d 393 (1980).]
ii. Choice of law provision in a separation agreement not incorporated into the
Japanese divorce judgment calling for Illinois law was enforceable. [Torres
v.McClain, 140 N.C. App. 238, 535 S.E.2d 623 (2000) (that both parties were
domicilaries of Illinois when agreement executed made Illinois law a reasonable
choice).]
c. e law of another state may not be applied if the law violates North Carolina public
policy. [Torres v.McClain, 140 N.C. App. 238, 535 S.E.2d 623 (2000) (applying Illinois
law after nding that it did not violate North Carolina public policy).] To show that
the law of another state violates North Carolina public policy, a party must show that
the law violates “some prevalent conception of good morals or fundamental prin-
ciple of natural justice or involve injustice to the people of the forum state.” [Torres
v.McClain, 140 N.C. App. 238, 243, 535 S.E.2d 623, 626 (2000) (quoting Boudreau
v.Baughman, 322 N.C. 331, 342, 368 S.E.2d 849, 857–58 (1988)) (fact that Illinois law
awarded wife a portion of husband’s nonvested military pension, when North Caro-
lina law did not so provide, did not violate North Carolina public policy).]
2. Enforcement of an unincorporated separation agreement.
a. An unincorporated separation agreement is enforced in the same manner as any
other contract. [Lasecki v. Lasecki, 809 S.E.2d 296 (N.C. Ct. App. 2017); Herring
v.Herring, 231 N.C. App. 26, 752 S.E.2d 190 (2013) (citing Gilmore v.Garner, 157
N.C. App. 664, 580 S.E.2d 15 (2003)); Reeder v.Carter, 226 N.C. App. 270, 740 S.E.2d
913 (2013), and Gilmore (both citing Moore v.Moore, 297 N.C. 14, 252 S.E.2d 735
(1979)). See also Long v.Long, 160 N.C. App. 664, 588 S.E.2d 1 (2003) (citing Jones
v.Jones, 144 N.C. App. 595, 548 S.E.2d 565 (2001)) (unincorporated agreements
are governed by general contract principles and are enforceable only under such
principles).]
b. An unincorporated separation agreement is enforced as an ordinary contract,
even when the agreement creates rights not provided for by North Carolina statute.
[Torres v.McClain, 140 N.C. App. 238, 535 S.E.2d 623 (2000) (trial court properly
distributed husband’s nonvested military pension pursuant to a separation agreement
governed by Illinois law, even though North Carolina law at the time did not provide
for equitable distribution of nonvested pensions).]
c. An unincorporated agreement is enforced as an ordinary contract even when some
provisions therein have been superseded, so long as the agreement was not incorpo-
rated into a court order. [See Hennessey v.Duckworth, 231 N.C. App. 17, 752 S.E.2d
194 (2013) (custody and child support provisions of a separation agreement were
superseded by a consent order but a provision in the agreement for attorney fees
remained enforceable when the agreement had never been incorporated into an
order; however, attorney fee provision in the agreement, that losing party was solely
responsible for all legal fees and costs upon breach or in a suit for enforcement,
was not applicable when later action between the parties was not one for breach
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or specic performance of the agreement but became a G.S.Chapter50 custody
action).]
d. Enforcement of provisions in an unincorporated separation agreement does not
transform the unincorporated agreement into a court order. [See Condellone v.Con-
dellone, 129 N.C. App. 675, 501 S.E.2d 690 (despite the fact that two money judg-
ments had been entered against husband for unpaid alimony, one of which ordered
specic performance of the alimony provisions in the parties’ unincorporated sepa-
ration agreement, the trial court had no authority under G.S.Chapter50 to modify
the alimony provisions based on changed circumstances because the agreement had
not been incorporated), review denied, 349 N.C. 354, 517 S.E.2d 889 (1998); Danai
v.Danai, 166 N.C. App. 279, 603 S.E.2d 168 (2004) (unpublished) (not paginated
on Westlaw) (stating that “[w]ere we to nd that a court’s enforcement of a separa-
tion agreement by applying contract remedies acted as a de facto incorporation of an
otherwise unincorporated agreement, we, in eect, would force a level of jurisdiction
over separation agreements not desired or intended by the parties to the agreement
and which would infringe on their freedom to contract”); cf. Young v.Young, 224 N.C.
App. 388, 736 S.E.2d 538 (2012) (contempt order requiring husband to specically
perform an unincorporated provision of a separation agreement resulted in that pro-
vision being incorporated going forward).]
e. Unincorporated agreements are enforced through an action for breach of contract.
i. A party may sue for breach of contract and seek money damages, or the party
may elect to rescind the contract based on a substantial breach and, if the stat-
utory requirements are met, seek other remedies, such as alimony [Wilson v.
Wilson, 261 N.C. 40, 134 S.E.2d 240 (1964).] or equitable distribution. [See Lee
v.Lee, 93 N.C. App. 584, 378 S.E.2d 554 (1989).]
ii. A party may sue for breach of contract and seek specic performance when the
legal remedy for breach of contract is inadequate. See Section IV.I.2.g, below.
iii. A trial court can award both a money judgment for amounts past due under
the contract and specic performance of future payments. [Lasecki v. Lasecki,
809 S.E.2d 296 (N.C. Ct. App. 2017) (trial court did not err in entering money
judgment for arrears along with the order of specic performance, even though
plainti’s complaint requested only specic performance).]
f. Breach of the separation agreement.
i. e elements of breach of contract are:
(a) e existence of a valid contract and
(b) Breach of the terms of the contract. [Long v.Long, 160 N.C. App. 664,
588 S.E.2d 1 (2003) (citing Poor v.Hill, 138 N.C. App. 19, 530 S.E.2d 838
(2000)).]
ii. e statute of limitations for breach of an unincorporated agreement:
(a) Is generally three years. [G.S.1-52(1).]
(b) Under seal is ten years. [G.S.1-47(2); Crogan v. Crogan, 236 N.C. App. 272,
763 S.E.2d 163 (2014).]
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(c) Begins to run when the claim accrues, and in a breach of contract action,
the claim generally accrues upon breach. [Scott & Jones, Inc. v.Carlton Ins.
Agency, Inc., 196 N.C. App. 290, 677 S.E.2d 848 (2009); Greene v.Colby, 193
N.C. App. 454, 667 S.E.2d 340 (2008) (unpublished) (citing Pearce v.High-
way Patrol Volunteer Pledge Comm., 310 N.C. 445, 312 S.E.2d 421 (1984))
(ten-year statute of limitations for a separation agreement under seal had
run when defendant, some eleven years prior to ling of complaint, com-
mitted an act indicating breach when she presented a deed for plainti’s
signature that contained “clear language” violating the terms of the parties’
separation agreement).]
iii. For a breach of contract to be actionable, “it must be a material breach, one that
substantially defeats the purpose of the agreement or goes to the very heart of
the agreement, or can be characterized as a substantial failure to perform.” [Long
v.Long, 160 N.C. App. 664, 668, 588 S.E.2d 1, 4 (2003) (citing Fletcher v.Fletcher,
123 N.C. App. 744, 474 S.E.2d 802 (1996)); Lancaster v.Lancaster, 138 N.C. App.
459, 466, 530 S.E.2d 82, 87 (2000) (noting that “[s]mall lapses or inconsequen-
tial breaches are not substantial breaches requiring rescission”).] See Cheryl
Howell, Separation and Property Settlement Agreements: When Does Breach
by One Party Excuse Performance by the Other? UNC S. G’: O
C S B (Apr. 11, 2018) (hereinafter Howell, Separation and Property
Settlement Agreements), https://civil.sog.unc.edu/separation-and-property-set-
tlement-agreements-when-does-breach-by-one-party-excuse-performance-by-
the-other.
(a) Husband’s deviation in the method of paying child support was not a sub-
stantial breach. [Long v.Long, 160 N.C. App. 664, 588 S.E.2d 1 (2003) (hus-
band’s payment of child support by check sometime after the rst of the
month was not a substantial breach of agreement that called for payment
by direct deposit on the rst of the month).]
(b) Husband’s failure to disclose his enrollment in a retirement plan after the
date of separation was not a material breach of the separation agreement.
[Lancaster v.Lancaster, 138 N.C. App. 459, 530 S.E.2d 82 (2000) (enroll-
ment in the plan after the date of separation would not aect the wife’s
share of the property).]
(c) Husband’s failure to inform wife of son’s dental surgery, failure to cancel
certain joint credit card accounts, and failure to pay wife the full amount
of her interest in his pension benets were not material breaches of the
agreement. [Fletcher v.Fletcher, 123 N.C. App. 744, 474 S.E.2d 802 (1996)
(failures did not substantially defeat the purpose of the agreement, nor did
they go to the very heart of the agreement), review denied, 345 N.C. 640,
483 S.E.2d 706 (1997).]
(d) Husband’s failure to make alimony payments was not a material breach
of the agreement when husband had missed only three payments, those
breaches occurred simultaneously with summary judgment hearings, hus-
band performed intermittently during that time, and there was no evidence
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that husband was attempting to avoid his obligation. [Cator v.Cator, 70
N.C. App. 719, 321 S.E.2d 36 (1984).]
iv. Breach of a duty to disclose.
(a) No breach by wife of duty to disclose information when husband testied
that he knew that attorney and attorney’s rm only represented wife, that
agreement would aect signicant legal rights with a long range eect, that
he should consult an attorney before signing the agreement, that he had
adequate time to consider the agreement, and that he signed the agreement
free from pressure and coercion. [Dawbarn v.Dawbarn, 175 N.C. App. 712,
625 S.E.2d 186 (2006) (parties’ duciary relationship terminated when wife
retained attorney but court assumed, for the purpose of argument, that
relationship was still in existence for this portion of the discussion on wife’s
failure to disclose).]
(b) No breach by husband where agreement provided that each party had
disclosed all information regarding property and nances requested by the
other. Husband not required by agreement to disclose to wife all marital
assets. [Daughtry v.Daughtry, 128 N.C. App. 737, 497 S.E.2d 105 (1998)
(because parties had attorneys representing them in the negotiation of the
agreement, a condential relationship did not exist).]
(c) Nondisclosure of $102,000 loan made by husband to corporation in which
he was majority shareholder was material breach justifying rescission of
separation agreement where “essence of the separation agreement was that
the parties must fully disclose all of their assets worth $100 or more.” [Lee
v.Lee, 93 N.C. App. 584, 588, 378 S.E.2d 554, 556 (1989).]
v. Breach of a “no interference” clause.
(a) Husband breached the “no interference” provision in the separation agree-
ment by making statements about or to his wife: “Your day is on the way”;
“Are you scared yet?”; “It’s nally time for you to pay for what you’ve done”;
and “You are getting ready to see dicult.” [Long v.Long, 160 N.C. App. 664,
669, 588 S.E.2d 1, 4 (2003).]
vi. Breach of a “no molestation” clause.
(a) Wife established breach of a no molestation clause by showing that hus-
band led or caused to be led numerous lawsuits against the wife, which
were dismissed before hearing, tampered with wife’s mail, and mistreated
their children, which caused wife mental anguish. [Reis v.Hoots, 131 N.C.
App. 721, 509 S.E.2d 198 (1998), review denied, 350 N.C. 595, 537 S.E.2d
481 (1999).]
vii. Waiver/ratication of a breach.
(a) A nonbreaching party to a separation agreement may waive enforcement of
a provision of that agreement by ratifying the breaching party’s partial per-
formance of the contract. [Altman v.Munns, 82 N.C. App. 102, 345 S.E.2d
419 (1986) (mother waived enforcement of father’s contractual requirement
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to pay daughter’s college expenses when mother agreed to pay half of those
expenses).]
viii. Breach of an integrated agreement.
(a) When an agreement is integrated, a party’s breach of its provisions can
relieve the nonbreaching party from his or her alimony obligations. [Patter-
son v.Taylor, 140 N.C. App. 91, 535 S.E.2d 374 (2000) (citing Nisbet v.Nis-
bet, 102 N.C. App. 232, 402 S.E.2d 151 (1991)).]
(b) See Howell, Separation and Property Settlement Agreements, https://civil.
sog.unc.edu/separation-and-property-settlement-agreements-when-does-
breach-by-one-party-excuse-performance-by-the-other.
(c) For the procedure to determine whether an agreement is integrated, see
Section IV.G.4.c.v, above.
g. Specic performance for breach of an unincorporated separation agreement.
i. Elements of specic performance.
(a) In addition to proving breach of contract, a party seeking specic perfor-
mance must allege and prove that the remedy at law is inadequate, the
defendant can perform some or all of his or her obligations, and the mov-
ing party has performed his or her obligations. [Reeder v.Carter, 226 N.C.
App. 270, 740 S.E.2d 913 (2013) (citing 3 Lee’s North Carolina Family Law
§14.35 (5th ed. 2002) and Cavenaugh v.Cavenaugh, 317 N.C. 652, 347
S.E.2d 19 (1986)); Cavenaugh (specic performance is available only if a
party has alleged and proven that he has performed his obligations under
the contract and that his remedy at law is inadequate). Cf. Praver v.Raus,
220 N.C. App. 88, 725 S.E.2d 379 (2012) (considering as dicta the statement
in Cavenaugh that a moving party must prove the performance of his obli-
gations; court of appeals declined to address the issue as defendant did not
raise it at trial).]
(b) A provision in an unincorporated separation agreement providing for
specic performance upon breach does not relieve the moving party of the
burden of proving the required elements. Nor does defendant’s failure to
answer eliminate plainti’s burden when the complaint fails to allege facts
about a required element. Parties may not contract around an established
legal standard. [Reeder v.Carter, 226 N.C. App. 270, 271, 740 S.E.2d 913,
915 (2013) (agreement provided, in part, that “an order of specic perfor-
mance enforceable by contempt is an appropriate remedy for a breach by
either party”; complaint did not allege facts about defendant’s ability to
pay).]
ii. Inadequate remedy at law.
(a) e remedy at law—meaning a money judgment—generally is inadequate
when complete recovery would require a multiplicity of actions and legal
processes. [Praver v.Raus, 220 N.C. App. 88, 725 S.E.2d 379 (2012); Cav-
enaugh v.Cavenaugh, 317 N.C. 652, 347 S.E.2d 19 (1986).] For this reason,
specic performance generally is allowed to enforce agreements for future
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periodic payments. [Praver; Cavenaugh.] In determining whether money
damages are an adequate remedy at law, the court “considers factors which
include the ‘diculty and uncertainty of collecting such damages after they
are awarded.’ ” [Lasecki v. Lasecki, 809 S.E.2d 296, 306 (N.C. Ct. App. 2017)
(quoting Whalehead Props. v.Coastland Corp., 290 N.C. 144, 270, 283, 261
S.E.2d 899, 908 (1980)).]
(b) In Reeder v.Carter, 226 N.C. App. 270, 271, 740 S.E.2d 913, 915 (2013), and
Praver v.Raus, 220 N.C. App. 88, 99 n.1, 725 S.E.2d 379, 386 n.1 (2012),
the separation agreements each provided that “neither party has a plain,
speedy, or adequate legal remedy to compel compliance with the provi-
sions of this agreement.” In Reeder, the court of appeals did not specically
address that language but held that the contractual specic performance
clause, which included that language, did not eliminate plainti’s burden on
the required elements. In Praver, neither party “discussed the impact of this
provision on the ability of the trial court to order specic performance,” so
the appellate court did “not address it or express any opinion on its eect.”
(c) However, the remedy at law for past due arrears may or may not be ade-
quate. In Praver v.Raus, 220 N.C. App. 88, 725 S.E.2d 379 (2012) (citing
Cavenaugh v.Cavenaugh, 317 N.C. 652, 347 S.E.2d 19 (1986)), the court
of appeals treated arrearages and prospective payments due under an
unincorporated agreement dierently, remanding for ndings addressing
whether plainti had an adequate remedy at law with respect to arrear-
ages of child support and alimony, while arming the portion of the order
requiring future payment of those obligations without a nding as to the
adequacy of plainti’s remedy. According to Praver, ndings addressing
whether a plainti’s remedy at law is adequate are not necessary for pro-
spective payments, based on case law recognizing that a plainti generally
must le multiple lawsuits to obtain judgments against a defendant who
repeatedly fails to pay an ongoing obligation. While a money judgment
for arrears generally is an adequate remedy, specic performance may be
appropriate upon “evidence of a pattern of defaults, of unsatised judg-
ments, and of conduct to keep assets from execution.” [Praver v. Raus, 220
N.C. App. 88, 98, 725 S.E.2d 379, 386 (2012) (citing 3 Lee’s North Carolina
Family Law §14.35b(ii) (5th ed. 2002)).]
(d) See also Reeder v.Carter, 226 N.C. App. 270, 740 S.E.2d 913 (2013) (citing
Moore v.Moore, 297 N.C. 14, 252 S.E.2d 735 (1979), and Stewart v.Stewart,
61 N.C. App. 112, 300 S.E.2d 263 (1983)) (damages are usually an inad-
equate remedy at law when an unincorporated separation agreement is
being enforced; noting that even one missed payment can indicate that the
remedy at law is inadequate); Stewart (breachor’s initial failure to comply
establishes the inadequacy of the breachee’s remedy at law; no abuse of
discretion when specic performance was ordered when complaint alleged
that defendant had stated he would not comply with agreement and failed
to make rst payment when due); Condellone v.Condellone, 129 N.C. App.
675, 501 S.E.2d 690 (when plainti obtained a money judgment in 1993 for
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unpaid alimony, which was unsatised when plainti led three subsequent
actions for arrearages accruing post-1993, plainti did not have an ade-
quate remedy at law with respect to the later actions), review denied, 349
N.C. 354, 517 S.E.2d 889 (1998).]
iii. Defendant’s ability to perform.
(a) Plainti has the burden of proving that the defendant has the ability to
perform some or all of the agreement. [Reeder v.Carter, 226 N.C. App.
270, 740 S.E.2d 913 (2013).] Plainti’s evidentiary burden is less than that
required in the contempt setting. [Reeder v.Carter, 226 N.C. App. 270,
740 S.E.2d 913 (2013) (citing 3 Lee’s North Carolina Family Law §14.35
(5th ed. 2002)); Condellone v.Condellone, 129 N.C. App. 675, 501 S.E.2d
690 (in nding defendant able to perform obligations under a separation
agreement, the trial court was not required to make a specic nding of
defendant’s “present ability to comply” as used in civil contempt context;
when ndings supported conclusion that defendant had the ability to carry
out the terms of the agreement, specic performance of obligations in the
agreement for monthly payments was “feasible”), review denied, 349 N.C.
354, 517 S.E.2d 889 (1998); Young v.Young, 224 N.C. App. 388, 736 S.E.2d
538 (2012) (citing Condellone) (generally, specic performance may not be
ordered unless such relief is feasible).]
(b) To meet plainti’s burden on ability to pay, a plainti has two alternatives:
present evidence of defendant’s actual income or assets or show that defen-
dant has depressed his income to avoid payment. [See Lasecki v. Lasecki,
246 N.C. App. 518, 786 S.E.2d 286 (2016) (trial court erred by considering
husband’s earning capacity without rst concluding he was acting in bad
faith); Reeder v.Carter, 226 N.C. App. 270, 740 S.E.2d 913 (2013) (specic
performance properly denied when plainti failed to allege specic facts
showing defendant’s ability to perform and acknowledged that defendant
had recently declared bankruptcy); Condellone v.Condellone, 129 N.C. App.
675, 501 S.E.2d 690 (order of specic performance supported by corporate
records showing a deliberate pattern of conduct by defendant to depress his
income and defeat plainti’s rights under the separation agreement), review
denied, 349 N.C. 354, 517 S.E.2d 889 (1998); Praver v.Raus, 220 N.C. App.
88, 725 S.E.2d 379 (2012) (even though defendant presented evidence of an
inability to pay, because court found, based on other evidence, that he was
voluntarily unemployed with the intent to deprive plainti of support due
under the agreement, ndings about defendant’s present ability to comply
with the agreement not required); Cavenaugh v.Cavenaugh, 317 N.C. 652,
347 S.E.2d 19 (1986) (if the court nds defendant unable to perform the
obligations under the agreement, it may not order specic performance
absent evidence that defendant has deliberately depressed his income or
dissipated his resources).]
(c) Defendant’s ability to pay may be demonstrated by evidence of actual
income or by showing that defendant has depressed income to avoid
payment, [Reeder v.Carter, 226 N.C. App. 270, 740 S.E.2d 913 (2013).]
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byevidence of assets such as retirement plan valuations, home value, and
tax returns, [Condellone v.Condellone, 129 N.C. App. 675, 501 S.E.2d 690,
review denied, 349 N.C. 354, 517 S.E.2d 889 (1998).] or by evidence of avail-
able credit. [Edwards v.Edwards, 102 N.C. App. 706, 403 S.E.2d 530, review
denied, 329 N.C. 787, 408 S.E.2d 518 (1991).]
(d) A defendant was found to have the ability to pay an obligation in an agree-
ment even though he had a monthly shortfall of $400, when defendant’s
sworn testimony and nancial adavit indicated a comfortable lifestyle and
showed a number of voluntary deductions for benets. [Martin v.Martin,
204 N.C. App. 595, 696 S.E.2d 925 (2010) (unpublished). See also Lasecki
v. Lasecki, 809 S.E.2d 296 (N.C. Ct. App. 2017) (defendant shown to have
ability to pay).]
(e) When defendant has oered evidence tending to show that he is unable
to fulll his obligations under a separation agreement, the trial judge
must make ndings of fact concerning defendant’s ability to carry out the
terms of the agreement before ordering specic performance. [Cavenaugh
v.Cavenaugh, 317 N.C. 652, 347 S.E.2d 19 (1986) (when trial judge did not
make such ndings, he could not have properly exercised his discretion in
ordering specic performance of the separation agreement and payment of
arrearages); Reeder v.Carter, 226 N.C. App. 270, 740 S.E.2d 913 (2013), and
Edwards v.Edwards, 102 N.C. App. 706, 403 S.E.2d 530, review denied, 329
N.C. 787, 408 S.E.2d 518 (1991) (both citing Cavenaugh).]
iv. Plainti’s performance under the agreement.
(a) In Cavenaugh v.Cavenaugh, 317 N.C. 652, 347 S.E.2d 19 (1986), the
supreme court stated that specic performance is available only if a party
has alleged and proven that he has performed his obligations under the
contract and that his remedy at law is inadequate. [Cf. Praver v.Raus, 220
N.C. App. 88, 725 S.E.2d 379 (2012) (considering as dicta the statement in
Cavenaugh that a moving party must prove the performance of his obliga-
tions; court of appeals declined to address the issue as defendant did not
raise it at trial).]
(b) While the moving party must prove that she has not breached the terms
of the separation agreement, an immaterial breach does not eliminate the
possibility of specic performance. [Reeder v.Carter, 226 N.C. App. 270,
740 S.E.2d 913 (2013) (noting that a plainti in breach might be required
to cure the breach or pay damages as a condition of the order for specic
performance).]
(c) When the parties intended for all provisions of the unincorporated sepa-
ration agreement to be independent of one another, a breach by plainti of
the provisions allowing defendant visitation would not excuse defendant’s
performance of the provision requiring him to pay one-half of children’s
college expenses. [Martin v.Martin, 204 N.C. App. 595, 696 S.E.2d 925
(2010) (unpublished) (defendant properly ordered to perform his obliga-
tion to pay one-half of child’s college expenses).] See Howell, Separation
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and Property Settlement Agreements, https://civil.sog.unc.edu/separation-
and-property-settlement-agreements-when-does-breach-by-one-party-ex-
cuse-performance-by-the-other.
(d) A material breach by defendant may excuse plainti’s subsequent perfor-
mance thereunder. [See Ebert v.Ebert, 223 N.C. App. 520, 735 S.E.2d 451
(2012) (unpublished) (defendant’s material breach of the agreement (uni-
laterally reducing his alimony payment by more than one-half in September
2007) excused plainti’s subsequent performance thereunder (her obliga-
tion to renegotiate the amount of alimony after October 2007)).]
v. Order for specic performance.
(a) e court may not modify an unincorporated separation agreement in an
order of specic performance. [Harris v.Harris, 307 N.C. 684, 300 S.E.2d
369 (1983). See Lasecki v. Lasecki, 809 S.E.2d 296 (N.C. Ct. App. 2017)
(order of specic performance of an amount less than contract amount
does not relieve party of liability for full contract amount).]
(b) A court can order specic performance of all or only part of an unincor-
porated agreement. [Harris v.Harris, 307 N.C. 684, 300 S.E.2d 369 (1983)
(a court may order specic performance of only that part of the agreement
which defendant is able to perform); Lasecki v. Lasecki, 809 S.E.2d 296
(N.C. Ct. App. 2017).]
(c) An order requiring a party to specically perform his or her obligations
under an unincorporated separation agreement is enforceable by contempt.
[Gen. Motors Acceptance Corp. v.Wright, 154 N.C. App. 672, 573 S.E.2d
226 (2002) (citing McDowell v.McDowell, 55 N.C. App. 261, 284 S.E.2d 695
(1981)). See also Blackburn v.Bugg, 723 S.E.2d 585 (N.C. Ct. App. 2012)
(unpublished) (specic performance ordered of alimony provisions in a
premarital agreement; in later proceeding defendant found in contempt for
failure to increase alimony annually based on increases in the Consumer
Price Index as provided for in the premarital agreement).]
(d) Specic performance is available to enforce either support or property set-
tlement provisions in an unincorporated agreement. [Moore v.Moore, 297
N.C. 14, 252 S.E.2d 735 (1979) (enforcing support provision); Rose v.Rose,
66 N.C. App. 161, 310 S.E.2d 626 (1984) (enforcing property settlement
provision).]
3. Enforcement of an incorporated separation agreement.
a. Separation agreements approved by the court on or after Jan. 11, 1983, are treated as
court-ordered judgments. [Walters v.Walters, 307 N.C. 381, 298 S.E.2d 338 (1983)
(applicable to all separation agreements incorporated by a court on or after Jan. 11,
1983).]
b. Remedies that are available to a party to a post-Walters incorporated agreement.
i. As an order of the court, the separation agreement is enforceable by contempt,
execution, or both. [Mitchell v.Mitchell, 270 N.C. 253, 154 S.E.2d 71 (1967);
Doub v.Doub, 313 N.C. 169, 326 S.E.2d 259 (1985) (per curiam); Walters
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v.Walters, 307 N.C. 381, 298 S.E.2d 338 (1983) (as a court order, an incorporated
separation agreement is enforceable by the contempt powers of the court); Pow-
ers v.Powers, 103 N.C. App. 697, 407 S.E.2d 269 (1991) (citing Mitchell); Fucito
v.Francis, 175 N.C. App. 144, 622 S.E.2d 660 (2005) (proper method to enforce
an incorporated agreement is by a motion for contempt); Blount v.Lemaire, 232
N.C. App. 521, 757 S.E.2d 527 (2014) (unpublished) (not paginated on Westlaw)
(not paginated on Westlaw) (when father agreed in incorporated separation
agreement to pay college expenses for “room, board and tuition” and “reasonable
spending money” for each child, court properly entered money judgment for
college costs that father failed to pay).]
ii. Property settlement provisions of an incorporated separation agreement are
enforceable by contempt proceedings. [Cobb v.Cobb, 54 N.C. App. 230, 282
S.E.2d 591 (1981), appeal dismissed, review denied, 304 N.C. 724, 288 S.E.2d 809
(1982).]
iii. In a contempt proceeding, the trial court has the authority to interpret an
agreement and is to apply “normal rules of interpreting or construing contracts.”
[Holden v.Holden, 214 N.C. App. 100, 110, 715 S.E.2d 201, 208 (2011) (quoting
Fucito v.Francis, 175 N.C. App. 144, 150, 622 S.E.2d 660, 664 (2005)); Fucito (in
an action for contempt, a court is permitted to use “normal rules of interpreting
or construing contracts” when interpreting an incorporated agreement).]
iv. For a party to be in civil contempt, a trial court must nd that a party’s noncom-
pliance was willful. Willfulness, in this context, means an ability to comply with
the court order and a deliberate and intentional failure to do so. [Clark v.Gragg,
171 N.C. App. 120, 614 S.E.2d 356 (2005).] e court of appeals has noted in
dicta that if the terms of an incorporated agreement are ambiguous, a nding
of contempt generally will not be proper, as it is dicult for a party to will-
fully refuse to comply with a term that he or she does not understand. [Holden
v.Holden, 214 N.C. App. 100, 715 S.E.2d 201 (2011).]
v. Before holding a defendant in civil contempt, a trial court must nd that defen-
dant has the present ability to comply with the order. [Oakley v.Oakley, 165 N.C.
App. 859, 599 S.E.2d 925 (2004) (trial court’s contempt order was reversed when
no nding was made as to husband’s present ability to comply with the alimony
obligations in an incorporated agreement).] For that reason, a party cannot
bring a civil contempt action to enforce an incorporated separation agreement
against a person who is deceased when the contempt action is initiated. [Mac-
Millan v.ompson, 231 N.C. App. 170, 753 S.E.2d 741 (2013) (unpublished)
(motion in the cause interpreted to initiate a civil contempt action).]
vi. For more on the use of contempt to enforce a court order, see the following
chapters in Volume 1 of this Bench Book: Enforcement of Child Support Orders,
Chapter3, Part 4; Child Custody, Chapter4; and Equitable Distribution Over-
view and Procedure, Chapter6, Part 1.
vii. For more on contempt and the procedures of G.S.Chapter5A, see Contempt of
Court, Bench Book, Vol. 2, Chapter4.
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viii. For an online module on contempt, see Michael Crowell, Contempt of Court
(UNC School of Government, Nov.2010), https://sog.adobeconnect.com/
p30019876/.
c. Remedies that are not available to a party to a post-Walters incorporated agreement.
i. Contract remedies. [Grith v.Curtis, 205 N.C. App. 462, 696 S.E.2d 701 (2010);
Doub v.Doub, 313 N.C. 169, 326 S.E.2d 259 (1985) (per curiam) (excluding
the remedy of an independent action in contract); Powers v.Powers, 103 N.C.
App. 697, 407 S.E.2d 269 (1991) (specic performance is not available).] While
contract remedies are not available, traditional contract defenses such as fraud
or duress may be asserted as grounds to set aside an incorporated agreement
under G.S.1A-1, Rule 60(b). [3 Lee’s North Carolina Family Law §14.57c (5th
ed. 2002); Grith v.Curtis, 205 N.C. App. 462, 466, 696 S.E.2d 701, 704 (2010)
(citing Yurek v.Shaer, 198 N.C. App. 67, 678 S.E.2d 738 (2009)) (upon incor-
poration, parties lose contract defenses; a party seeking to set aside an incorpo-
rated agreement is limited to proving “lack of consent, fraud, mutual mistake,
or unilateral mistake under some misconduct”; unconscionability is a defense
that could have been addressed before entry of the judgment so is barred by res
judicata); Coppley v.Coppley, 128 N.C. App. 658, 496 S.E.2d 611 (error to deny
wife’s motion to set aside incorporated consent judgment pursuant to Rule 60(b)
when wife clearly established that she was under duress when she entered into
agreement), review denied, 348 N.C. 281, 502 S.E.2d 846 (1998).]
ii. A declaratory judgment action to interpret a provision in an incorporated agree-
ment. [Fucito v.Francis, 175 N.C. App. 144, 622 S.E.2d 660 (2005) (trial court
would have authority to construe the provision in question, a distributive award
provision, in a contempt proceeding).]
4. Defenses to enforcement related to execution of the agreement.
a. e courts will subject a claim of fraud, duress, or undue inuence to a far more
searching scrutiny when a party was represented by counsel in the making of the
agreement and throughout the negotiations leading up to its execution. [Van Every
v.Van Every, 265 N.C. 506, 144 S.E.2d 603 (1965) (citing Joyner v.Joyner, 264 N.C.
27, 140 S.E.2d 714 (1965)) (fact that wife was represented by counsel at the confer-
ence resulting in a separation agreement and when she executed and acknowledged
the agreement contradicts contention that she was incompetent to understand the
arrangements, was ignorant of its terms, and did not know what she was doing).]
b. e statute of limitations on a claim to set aside an agreement on the grounds of
fraud, duress, or undue inuence is three years. However, if fraud is raised as a coun-
terclaim in response to a breach of contract claim on a sealed instrument, the same
ten-year statute of limitations will apply to both the breach of contract claim and the
fraud counterclaim. [Crogan v. Crogan, 236 N.C. App. 272, 763 S.E.2d 163 (2014).]
c. Duress.
i. A separation agreement executed while a party is acting under duress is invalid
and can be set aside. [Goodwin v.Webb, 357 N.C. 40, 577 S.E.2d 621 (2003),
rev’g per curiam for reasons stated in dissenting opinion in 152 N.C. App. 650,
568 S.E.2d 311 (2002) (Greene, J., dissenting).]
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ii. Duress is the result of coercion and “exists where one, by the unlawful act of
another, is induced to make a contract or perform or forego some act under cir-
cumstances” that deprives a person of the exercise of free will. [Stegall v.Stegall,
100 N.C. App. 398, 401, 397 S.E.2d 306, 307 (1990) (emphasis in original) (quot-
ing Link v.Link, 278 N.C. 181, 194, 179 S.E.2d 697, 705 (1971)), review denied,
328 N.C. 274, 400 S.E.2d 461 (1991); Fletcher v.Fletcher, 23 N.C. App. 207, 210,
208 S.E.2d 524, 527 (1974) (“[d]uress may take the form of unlawfully inducing
one to make a contract or to perform some other act against his own free will”).]
iii. e following factors are relevant in determining whether a victim’s will was
actually overcome:
(a) e age and physical and mental condition of the victim;
(b) Whether the victim had independent advice;
(c) Whether the transaction was fair;
(d) Whether there was independent consideration for the transaction;
(e) e relationship of the victim and the alleged perpetrator;
(f) e value of the item transferred compared with the total wealth of the
victim; and
(g) Whether the perpetrator actively sought the transfer and whether the vic-
tim was in distress or in an emergency situation. [Stegall v.Stegall, 100 N.C.
App. 398, 397 S.E.2d 306 (1990), review denied, 328 N.C. 274, 400 S.E.2d
461 (1991).]
iv. at a person was not threatened with physical force or violence is not conclu-
sive on the issue of duress. [Coppley v.Coppley, 128 N.C. App. 658, 496 S.E.2d
611, review denied, 348 N.C. 281, 502 S.E.2d 846 (1998).] Findings supported the
trial court’s conclusion that defendant was not under duress when he executed
a separation agreement when ndings showed no evidence that defendant’s
alleged duress was based on actions of the plainti and when ndings summa-
rized admissions by defendant, including his admission that the agreement was
fair, that he understood it, and that he voluntarily executed it and was not acting
under duress when he signed it. [Praver v.Raus, 220 N.C. App. 88, 725 S.E.2d
379 (2012).]
v. Trial court erred in denying wife’s motion to set aside a consent judgment pur-
suant to G.S.1A-1, Rule 60(b) when wife clearly established that she was under
duress when she entered into the agreement. [Coppley v.Coppley, 128 N.C. App.
658, 496 S.E.2d 611 (wife was at the mercy of her husband who, after discover-
ing her indelity, determined her rights to their children and manipulated her
by threatening her relationship with the children if she did not sign the consent
order and go along with his terms for custody, support, and the distribution of
marital property), review denied 348 N.C. 281, 502 S.E.2d 846 (1998).]
vi. An agreement entered into under duress nevertheless may be enforceable if a
party raties the agreement by accepting benets under the agreement, so long
as the party understands that the benets arise from the separation agreement
and the party is not under duress to accept those benets. [Goodwin v.Webb,
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357 N.C. 40, 577 S.E.2d 621 (2003), rev’g per curiam for reasons stated in dissent-
ing opinion in 152 N.C. App. 650, 568 S.E.2d 311 (2002) (Greene, J., dissenting)
(wife ratied agreement entered into under duress when she accepted money
and real and personal property under the agreement, she was aware that she
received those benets pursuant to the agreement, and there was no evidence
that she was under duress when she accepted the benets). See also Hill v.Hill,
94 N.C. App. 474, 380 S.E.2d 540 (1989) (wife continued to accept benets of
the agreement, in the form of monthly support payments, long after she became
aware of the alleged wrongdoing that induced her to enter into the agreement).]
d. Fraud.
i. e statute of limitations applicable to an action for fraud is three years;
the cause of action is not deemed to have accrued until the discovery by the
aggrieved party of the facts constituting the fraud. [G.S.1-52(9). But cf. Crogan
v. Crogan, 236 N.C. App. 272, 763 S.E.2d 163 (2014) (when fraud is brought as a
counterclaim to a claim for breach of contract on a sealed instrument, the same
ten-year statute of limitations will apply to both the breach of contract claim and
the fraud counterclaim).]
ii. Constructive fraud requires a showing that the parties were in a duciary rela-
tionship at the time of the alleged fraud and that one party took advantage of the
position of trust to his benet. [Searcy v.Searcy, 215 N.C. App. 568 715 S.E.2d
853 (2011).]
iii. e failure of a husband or wife to accurately disclose or represent assets and
debts in negotiating a separation or property settlement agreement can consti-
tute fraud when the parties had a duty to disclose. [Sidden v.Mailman, 137 N.C.
App. 669, 529 S.E.2d 266 (2000); Searcy v.Searcy, 215 N.C. App. 568, 715 S.E.2d
853 (2011) (summary judgment not proper when genuine issue of material fact
existed as to whether defendant committed constructive fraud when he failed
to include in his list of assets two parcels of marital real property, which he had
a duty to disclose for equitable distribution purposes; moreover, at the time of
disclosure the parties had not separated and neither party had retained an attor-
ney, so duciary relationship arising from their marriage had not ended); Har-
ro v.Harro, 100 N.C. App. 686, 398 S.E.2d 340 (1990) (summary judgment
inappropriate when there were questions of fact as to whether the condential
relationship still existed and whether defendant had concealed assets or their
true values), review denied, 328 N.C. 330, 402 S.E.2d 833 (1991).]
iv. Wife suciently alleged agreement procured by fraud when she alleged that
the parties were married when the agreement was executed, which suciently
alleged existence of a duciary duty, and husband admitted that he failed to dis-
close existence of his state retirement account, which served to amend the com-
plaint to allege breach of that duty. [Sidden v.Mailman, 137 N.C. App. 669, 529
S.E.2d 266 (2000) (trial court erred in dismissing fraud claim based on plainti’s
failure to allege husband’s breach of duciary duty).]
v. A contract or unincorporated settlement agreement cannot be attacked for
fraud where the alleged misrepresentation or misstatement relates to a matter
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of law. [Dalton v.Dalton, 164 N.C. App. 584, 596 S.E.2d 331 (2004) (husband
sought to set aside unincorporated separation agreement that allocated the
parties their respective retirement accounts pursuant to wife’s representation
that North Carolina law required each of them to retain their respective retire-
ment accounts as their separate property; husband presumed to know the law).
See also Avriett v.Avriett, 88 N.C. App. 506, 363 S.E.2d 875 (fraud cannot be
based upon ignorance of the law), a’d per curiam, 322 N.C. 468, 368 S.E.2d 377
(1988).]
vi. For more on a claim of failure to disclose, see Section IV.I.4.h, below.
e. Undue inuence.
i. Where the court cannot nd sucient threat to constitute duress, it may still
nd the presence of undue inuence. [Coppley v.Coppley, 128 N.C. App. 658,
496 S.E.2d 611, review denied, 348 N.C. 281, 502 S.E.2d 846 (1998).]
ii. Undue inuence exists where there has been “a fraudulent inuence over the
mind and will of another to the extent that the professed action is not freely
done but is in truth the act of the one who procures the result.” [Clark v.Foust-
Graham, 171 N.C. App. 707, 713, 615 S.E.2d 398, 402 (2005) (quoting In re Estate
of Loftin, 285 N.C. 717, 722, 208 S.E.2d 670, 674–75 (1974)).] Undue inuence
has four general elements:
(a) A person who is subject to inuence;
(b) An opportunity to exert inuence;
(c) A disposition to exert inuence; and
(d) A result indicating undue inuence. [Clark v.Foust-Graham, 171 N.C. App.
707, 713–14, 615 S.E.2d 398, 402 (2005) (considering undue inuence in an
annulment action but noting that undue inuence has been recognized as
a “potential ground for nullifying documents executed by persons in antici-
pation of marriage or divorce”).]
iii. No undue inuence where parties rst executed an informal agreement, fol-
lowed by a formal agreement two weeks later, wife was advised by husband’s
attorney that she could have an attorney review the agreement before execution,
and wife was given time to review agreement in private before she signed it.
[Sidden v.Mailman, 137 N.C. App. 669, 529 S.E.2d 266 (2000).]
iv. Evidence by wife that husband told her that the separation agreement was tem-
porary, that he needed the agreement to eect a loan, that he loved her, and that
he would resolve any diculties and resume marital relations was insucient
to nd undue inuence. [Murphy v.Murphy, 34 N.C. App. 677, 239 S.E.2d 597
(1977), a’d in part, rev’d in part on other grounds, 295 N.C. 390, 245 S.E.2d 693
(1978).]
f. Mistake.
i. Generally.
(a) e statute of limitations applicable to an action for relief on the ground of
mistake is three years; the cause of action is not deemed to have accrued
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until the discovery by the aggrieved party of the facts constituting the mis-
take. [G.S.1-52(9).]
(b) Neither unilateral mistakes of fact nor mutual mistakes of law are, standing
alone, sucient to set aside or reform an unincorporated agreement.
[Herring v.Herring, 231 N.C. App. 26, 752 S.E.2d 190 (2013) (citing
Stevenson v.Stevenson, 100 N.C. App. 750, 398 S.E.2d 334 (1990)).]
(c) e party seeking to reform or rescind an unincorporated agreement bears
the burden of proving the existence of a mutual mistake by clear, cogent,
and convincing evidence. [Herring v.Herring, 231 N.C. App. 26, 752 S.E.2d
190 (2013) (citing Smith v.First Choice Servs., 158 N.C. App. 244, 580 S.E.2d
743 (2003)).]
ii. Mutual mistake as to a material fact.
(a) A mutual mistake as to a material fact comprising the essence of an agree-
ment provides grounds to rescind a contract. [Lancaster v.Lancaster, 138
N.C. App. 459, 530 S.E.2d 82 (2000); Stevenson v.Stevenson, 100 N.C. App.
750, 752, 398 S.E.2d 334, 336 (1990) (contract may be avoided based on
mutual mistake where the mistake is common to both parties and where,
because of it, “each has done what neither intended”); Herring v.Herring,
231 N.C. App. 26, 752 S.E.2d 190 (2013) (citing Lancaster) (husband’s
unilateral assertions, that the parties intended to use the actual value of
wife’s state retirement in calculating the distributional award in their sep-
aration agreement and that neither party was aware that the pension was
worth more than wife’s contributions to her dened benet plan when they
entered into the agreement, were insucient to establish a mutual mistake
of material fact).]
(b) A contract or unincorporated settlement agreement cannot be set aside for
a mutual mistake as to a material fact when the parties make a mistake of
law, not of fact. [Dalton v.Dalton, 164 N.C. App. 584, 596 S.E.2d 331 (2004)
(separation agreement distributed the parties’ retirement accounts pursu-
ant to wife’s representation that North Carolina law required each of them
to retain their respective retirement accounts as their separate property; no
mistake of fact); Herring v.Herring, 231 N.C. App. 26, 752 S.E.2d 190 (2013)
(citing Dalton) (allegation that parties misunderstood the value of wife’s
state retirement account because they did not treat it as a dened benet
plan and calculate its value accordingly, if a mutual mistake, was a mistake
of law, not warranting rescission).]
iii. Mistake by one party and inequitable conduct by the other.
(a) A unilateral mistake, unaccompanied by fraud, imposition, or like
circumstances, is not sucient to avoid a contract. [Stevenson v.Stevenson,
100 N.C. App. 750, 398 S.E.2d 334 (1990) (consent judgment, which parties
had revised several times, enforced as written when wife failed to show that
husband attempted to conceal alteration of a formula to value the marital
residence or that any pressure was applied to get wife and her attorney
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to sign the judgment without being able to properly review it); Herring
v.Herring, 231 N.C. App. 26, 752 S.E.2d 190 (2013) (citing Stevenson).]
(b) When plainti alleged that she mistakenly executed a memorandum of
judgment during family nancial mediation, which was later incorporated
into a consent judgment, she alleged a unilateral mistake rather than the
mutual mistake required to set aside the judgment under G.S.1A-1, Rule
60(b). [Grith v.Curtis, 205 N.C. App. 462, 696 S.E.2d 701 (2010).]
(c) An instrument that fails to express the true intention of the parties may be
reformed to express such intention when the failure is due to the mistake
of one party induced by fraud on the part of the other or due to a mistake
of the draftsman. [Fountain v.Fountain, 83 N.C. App. 307, 350 S.E.2d 137
(1986) (citing McBride v.Johnson Oil & Tractor Co., 52 N.C. App. 513, 279
S.E. 2d 117 (1981)), review denied, 319 N.C. 224, 353 S.E.2d 407 (1987).]
(d) Separation agreement could be reformed when parties had made an oral
agreement and one party knew that the other party mistakenly believed
that the written agreement conformed to the oral understanding. [Fountain
v.Fountain, 83 N.C. App. 307, 350 S.E.2d 137 (1986) (summary judgment in
wife’s favor to enforce agreement as written reversed when husband pre-
sented uncontradicted evidence that he was mistaken as to the actual eect
of a formula providing for annual increases in alimony and jury could nd
that wife was aware of husband’s mistaken belief), review denied, 319 N.C.
224, 353 S.E.2d 407 (1987).]
g. Lack of mental capacity.
i. A separation agreement is voidable if one party lacks mental capacity at the time
the agreement is executed. [Lawson v.Bennett, 240 N.C. 52, 81 S.E.2d 162 (1954)
(wife’s mental incapacity at the time she entered into the deed of separation
established). See also Holton v. Holton, 813 S.E.2d 649, 656 (N.C. Ct. App. 2018)
(plainti stated a claim for rescission where complaint alleged that she “was on
post-surgery medications that aected her memory and reasoning” at the time
of execution).]
ii. Trial court did not err in refusing to set aside a separation agreement, based in
part on defendant’s contentions that he lacked the ability to contract because he
was depressed and was on medication for that condition and for sleep problems.
e trial court properly considered defendant’s testimony but, according to the
appellate court, determined that “it was not entitled to much weight.” [Praver
v.Raus, 220 N.C. App. 88, 92, 725 S.E.2d 379, 382–83 (2012).]
iii. Trial court did not err in refusing to rescind the parties’ agreement on the
ground of wife’s lack of capacity to contract. [Sidden v.Mailman, 137 N.C. App.
669, 529 S.E.2d 266 (2000) (even though there was conicting evidence regard-
ing wife’s mental state, competent evidence supported nding that wife was not
mentally impaired).]
h. Failure to disclose.
i. Where a duciary relationship exists between spouses, each spouse has a duty
to disclose all material facts to the other. [Lancaster v.Lancaster, 138 N.C. App.
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459, 530 S.E.2d 82 (2000); Harro v.Harro, 100 N.C. App. 686, 398 S.E.2d.
340 (1990), review denied, 328 N.C. 330, 402 S.E.2d 833 (1991); Daughtry
v.Daughtry, 128 N.C. App. 737, 497 S.E.2d 105 (1998) (rejecting the argument
that every spouse who is a party to a separation and/or property settlement
agreement has an armative obligation to make a full and accurate disclosure
of his or her assets and debts; rather, when parties are in a condential relation-
ship, duty is to disclose all material facts). But see Dawbarn v.Dawbarn, 175
N.C. App. 712, 718, 625 S.E.2d 186, 191 (2006) (describing the duty of spouses in
a duciary relationship as “a duty of full disclosure to the other”).]
ii. A party may voluntarily waive his or her right to disclosure:
(a) By language in the agreement. [See Daughtry v.Daughtry, 128 N.C. App.
737, 497 S.E.2d 105 (1998) (agreement provided that each party had dis-
closed all information regarding property and nances requested by the
other and that each party waived further disclosure).]
(b) By his or her conduct. [See Sidden v.Mailman, 150 N.C. App. 373, 563
S.E.2d 55 (2002) (wife waived any duty husband may have had to disclose
the value of his retirement account (1) by signing the separation agreement
without obtaining legal advice and without inquiring as to the value of the
account, when agreement awarded all retirement accounts to husband,
and (2) by refusing to participate in the process of disclosure and to look at
what husband attempted to disclose), cert. denied, 356 N.C. 678, 577 S.E.2d
888 (2003).]
(c) By ratication of the agreement. [Honeycutt v.Honeycutt, 208 N.C. App. 70,
701 S.E.2d 689 (2010) (plainti became aware of husband’s alleged failure
to disclose assets shortly after execution of the property settlement agree-
ment but accepted substantial benets under the agreement for nearly two
years; plainti ratied the agreement by accepting and retaining property
worth in excess of $1,000,000 with full understanding that the benets
arose from the separation agreement, and her acceptance of benets was
not made under duress or due to any other wrongdoing); Rolls v.Rolls,
208 N.C. App. 569, 706 S.E.2d 842 (2010) (unpublished) (when defendant
executed a qualied domestic relations order directing transfer of one-half
of wife’s IRA to defendant, which enforced a provision in the parties’ sep-
aration agreement, defendant ratied the separation agreement; summary
judgment for plainti proper on defendant’s claim that plainti failed to
disclose assets when agreement entered into), review denied, 365 N.C. 70,
706 S.E.2d 238 (2011).]
iii. When the parties are no longer in a duciary relationship, the duty to disclose
ends. However, “[i]n North Carolina, there is no bright line that marks the end
of the duciary relationship.” [3 Lee’s North Carolina Family Law §14.45 (5th ed.
2002).]
iv. Courts have found that the duciary relationship, and thus the duty of a spouse
to disclose, ends:
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(a) When the parties separate and become adversaries negotiating over the
terms of their separation. [Lancaster v.Lancaster, 138 N.C. App. 459, 530
S.E.2d 82 (2000) (parties were adversarial when wife moved out of house
because she feared husband, husband hired an attorney, and parties argued
about alimony provision in separation agreement).]
(b) When one or both spouses is represented by legal counsel and negotiates
through that attorney with the other spouse as an adversary. [Joyner
v.Joyner, 264 N.C. 27, 140 S.E.2d 714 (1965); Dawbarn v.Dawbarn, 175
N.C. App. 712, 625 S.E.2d 186 (2006) (duciary duty terminated when
wife retained counsel to prepare postnuptial agreement); Avriett v.Avriett,
88 N.C. App. 506, 363 S.E.2d 875 (use of an attorney by one party but not
the other established that the parties had become adversaries and that the
condential relationship that formerly existed between them was termi-
nated), a’d per curiam, 322 N.C. 468, 368 S.E.2d 377 (1988); Daughtry
v.Daughtry, 128 N.C. App. 737, 497 S.E.2d 105 (1998) (when both parties
had attorneys during negotiations, no condential relationship existed);
Harton v.Harton, 81 N.C. App. 295, 344 S.E.2d 117 (termination of the
duciary relationship is rmly established when one or both of the par-
ties is represented by counsel), review denied, 317 N.C. 703, 347 S.E.2d 41
(1986).]
(c) On the eective date of the separation agreement. [Searcy v.Searcy, 215
N.C. App. 568, 715 S.E.2d 853 (2011) (parties separated on April 13; sepa-
ration agreement executed on June 10 provided it was eective as of April
13).]
v. A duciary relationship does not end:
(a) When, before the parties separated or hired attorneys, the parties
exchanged lists of assets and liabilities for consideration at a future media-
tion. [Searcy v.Searcy, 215 N.C. App. 568, 715 S.E.2d 853 (2011) (plainti’s
fraud claim based on defendant’s failure to include in his assets two parcels
of marital real property improperly dismissed upon defendant’s summary
judgment motion; parties were still in a duciary relationship when lists
were exchanged).]
(b) Upon representation by an attorney when the attorney functions merely
as a scrivener. [Sidden v.Mailman, 137 N.C. App. 669, 678 n.1, 529 S.E.2d
266, 272 n.1 (2000) (citing Harro v.Harro, 100 N.C. App. 686, 691, 398
S.E.2d 340, 343 (1990), review denied, 328 N.C. 330, 402 S.E.2d 833 (1991))
(“[r]epresentation by an attorney does not automatically end the conden-
tial relationship of spouses if the attorney’s role [i]s merely to record the
agreement the spouses agreed to while living in the condential relation-
ship”); Harro (where both parties retained one attorney to act as a scriv-
ener to draft the parties’ agreement, condential relationship not auto-
matically ended; there was a question of fact as to whether the condential
relationship still existed).]
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(c) Automatically upon separation. [Harro v.Harro, 100 N.C. App. 686, 398
S.E.2d. 340 (1990) (citing Link v.Link, 278 N.C. 181, 179 S.E.2d 697 (1971))
(condential relationship can continue to exist after one spouse has left
the home), review denied, 328 N.C. 330, 402 S.E.2d 833 (1991); Lancaster
v.Lancaster, 138 N.C. App. 459, 530 S.E.2d 82 (2000) (citing Haro and
Sidden v.Mailman, 137 N.C. App. 669, 529 S.E.2d 266 (2000)) (when one
party moves out of the marital home, this is evidence that the condential
relationship is over, although it is not controlling).]
vi. When parties address the duty to disclose in a separation agreement, the agree-
ment controls. [See Lee v.Lee, 93 N.C. App. 584, 378 S.E.2d 554 (1989) (nding
material breach when agreement required disclosure of assets worth $100 or
more and husband failed to disclose substantial loan he made to corporation in
which he was majority shareholder); Daughtry v.Daughtry, 128 N.C. App. 737,
497 S.E.2d 105 (1998) (where agreement provided that each party had disclosed
all information regarding property and nances requested by the other, the
parties were obligated to make a full and accurate disclosure only with respect
to information requested and were not obligated to make a full disclosure with
respect to all marital property; parties not in a condential relationship when
agreement entered into).]
vii. A claim of failure to disclose may also be analyzed under the doctrines of
unconscionability or fraud. [See Section IV.I.4.i, immediately below, on
unconscionability and Section IV.I.4.d, above, on fraud.]
i. Unconscionability.
i. To be unconscionable, a court must nd that the agreement is both substantively
and procedurally unconscionable. [Sidden v.Mailman, 137 N.C. App. 669, 529
S.E.2d 266 (2000) (citing King v.King, 114 N.C. App. 454, 442 S.E.2d 154 (1994))
(assuming that husband’s failure to disclose state retirement account amounted
to procedural unconscionability, when wife abandoned argument on appeal that
agreement was substantively unconscionable, court of appeals did not address
that issue and upheld trial court’s conclusion that agreement was substantively
fair); Daughtry v.Daughtry, 128 N.C. App. 737, 497 S.E.2d 105 (1998) (citing
King) (procedural unconscionability, combined with substantive unconscionabil-
ity, justies relief from the terms of the agreement); King.]
ii. Substantive unconscionability consists of contracts that are harsh, oppressive,
and one-sided. [Lancaster v.Lancaster, 138 N.C. App. 459, 530 S.E.2d 82 (2000)
(citing King v.King, 114 N.C. App. 454, 442 S.E.2d 154 (1994)); Sidden v.Mail-
man, 137 N.C. App. 669, 675, 529 S.E.2d 266, 271 (2000) (citing King) (substan-
tive unconscionability involves “inequality of the bargain”).]
(a) e inequality of the bargain must be “so manifest as to shock the judgment
of a person of common sense, and...the terms...so oppressive that no
reasonable person would make them on the one hand, and no honest and
fair person would accept them on the other.” [King v.King, 114 N.C. App.
454, 458, 442 S.E.2d 154, 157 (1994) (quoting Brenner v.Sch. House, Ltd.,
302 N.C. 207, 213, 274 S.E.2d 206, 210 (1981)).]
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iii. Procedural unconscionability consists of fraud, coercion, undue inuence,
misrepresentation, inadequate disclosure, duress, and overreaching. [Lancaster
v.Lancaster, 138 N.C. App. 459, 530 S.E.2d 82 (2000) (citing King v.King, 114
N.C. App. 454, 442 S.E.2d 154 (1994)); Sidden v.Mailman, 137 N.C. App. 669,
675, 529 S.E.2d 266, 271 (2000) (citing King) (procedural unconscionability
involves “bargaining naughtiness”).]
iv. Even spouses who are not in a condential relationship are prohibited from
engaging in unconscionable behavior when entering into a separation agree-
ment. [Lancaster v.Lancaster, 138 N.C. App. 459, 530 S.E.2d 82 (2000) (citing
King v.King, 114 N.C. App. 454, 442 S.E.2d 154 (1994)); Daughtry v.Daughtry,
128 N.C. App. 737, 497 S.E.2d 105 (1998) (when parties are not in a condential
relationship and there is no language in the agreement addressing the duty to
disclose, inadequate or fraudulent disclosure by either party in the bargaining
process can constitute procedural unconscionability).]
v. e failure of a party to accurately disclose his assets and debts when nego-
tiating a separation and/or a property agreement can constitute procedural
unconscionability, even if the party’s failure to disclose does not equal fraud.
[Sidden v.Mailman, 137 N.C. App. 669, 529 S.E.2d 266 (2000) (citing Daughtry
v.Daughtry, 128 N.C. App. 737, 497 S.E.2d 105 (1998)).]
vi. Cases nding agreement not unconscionable.
(a) Lancaster v.Lancaster, 138 N.C. App. 459, 465, 530 S.E.2d 82, 86 (2000)
(nding no evidence of fraud, duress, or undue inuence and not nding
that the agreement was so inequitable as to be unconscionable; noting
that a “separation agreement is not invalid merely because one party later
decides that what she bargained for is not as good as she would have liked”).
(b) King v.King, 114 N.C. App. 454, 459, 442 S.E.2d 154, 158 (1994) (even
though agreement vested husband with personal and real property valued
at $11,000 and debts valued at $24,040, and wife received personal and real
property valued at $54,600 and debts valued at $6,000, court did not nd
based on the record before it that the distribution “shock[s] the judgment of
a person of common sense;” agreement not substantively unconscionable).
vii. A party may not seek to set aside an incorporated agreement based on uncon-
scionability. [Grith v.Curtis, 205 N.C. App. 462, 466, 696 S.E.2d 701, 704
(2010) (citing Yurek v.Shaer, 198 N.C. App. 67, 678 S.E.2d 738 (2009)) (upon
incorporation, parties lose contract defenses; a party seeking to set aside an
incorporated agreement is limited to proving “lack of consent, fraud, mutual
mistake, or unilateral mistake under some misconduct”; in context of an incor-
porated consent judgment, unconscionability is a defense that could have been
addressed before entry of the judgment so is barred by res judicata).]
5. Defenses to enforcement related to agreement itself.
a. Vagueness.
i. A separation agreement is not enforceable if its terms are so vague and uncer-
tain that no denite meaning can be ascertained. [Matthews v.Matthews, 2
N.C. App. 143, 162 S.E.2d 697 (1968) (postnuptial agreement wherein husband
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promised that if he ever left wife, everything he had would be hers was vague
and uncertain; a more compelling reason to deny enforcement was that the
agreement was void as against public policy for providing an economic induce-
ment to leave the marriage).]
ii. A court will not, however, deny relief because of vagueness or uncertainty if the
intent of the parties can be determined from the plain language of the separa-
tion agreement, and any ambiguities creating questions of fact may properly
be resolved with the use of parol evidence. [Jackson v.Jackson, 360 N.C. 56, 620
S.E.2d 862, rev’g per curiam for reasons stated in dissenting opinion in 169 N.C.
App. 46, 610 S.E.2d 731 (2005) (Hunter, J., dissenting).]
(a) “ ‘When a contract is in writing and free from any ambiguity which would
require resort to extrinsic evidence, or the consideration of disputed fact,
the intention of the parties is a question of law.’ ” [Hagler v.Hagler, 319 N.C.
287, 294, 354 S.E.2d 228, 234 (1987) (quoting Bicycle Transit Auth. v.Bell,
314 N.C. 219, 227, 333 S.E.2d 299, 304 (1985)).]
(b) When the terms of a contract are not ambiguous, extrinsic evidence may
not be used to explain the parties’ intention behind the agreement. [Hart-
man v.Hartman, 80 N.C. App. 452, 343 S.E.2d 11 (1986); Martin v.Martin,
204 N.C. App. 595, 696 S.E.2d 925 (2010) (unpublished) (citing Hartman).]
(c) If the language of the agreement is ambiguous, the court may admit parol
evidence to explain those terms. [Jackson v.Jackson, 360 N.C. 56, 620 S.E.2d
862, rev’g per curiam for reasons stated in dissenting opinion in 169 N.C.
App. 46, 610 S.E.2d 731 (2005) (Hunter, J., dissenting) (trial court erred by
nding separation agreement vague and unenforceable when intent of the
parties could be determined by the agreement’s plain language and use
of parol evidence); Patterson v.Taylor, 140 N.C. App. 91, 535 S.E.2d 374
(2000) (court may consider extrinsic evidence to determine the parties’
intention behind an ambiguous term).]
(d) See Section IV.E.2, above, on use of extrinsic evidence.
iii. An incorporated separation agreement that oered no “specic language” about
the distribution of retirement benets and provided only that retirement issues
would be addressed “at a later date” was not too vague to establish the wife’s
right to seek a portion of the husband’s military retirement pay. [Brenenstuhl
v.Brenenstuhl, 169 N.C. App. 433, 610 S.E.2d 301 (2005) (trial court correctly
applied G.S.50-20.1(d) to determine wife’s portion of husband’s military pay).]
b. Additional documents called for by the separation agreement were never executed.
i. Separation agreement that called for the parties to execute a separate right of
rst refusal agreement was not enforceable when the separate agreement was
never executed. [Cty. of Jackson v.Nichols, 175 N.C. App. 196, 623 S.E.2d 277
(2005) (concluding that the parties did not intend to be bound by the separation
agreement until the right of rst refusal agreement was executed).]
6. Defenses to enforcement related to post-execution events or conduct of the parties.
a. Subsequent remarriage of the parties.
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i. Unless there is evidence to the contrary, when a married couple enters into a
separation agreement, later divorces, and then remarries, each party to the mar-
riage regains all rights and privileges incident to marriage. [Batten v.Batten, 125
N.C. App. 685, 482 S.E.2d 18 (1997) (where parties’ remarriage created a new
marriage contract and legal status, and no provision in the separation agreement
from their rst marriage indicated an intent for it to remain in force in the event
that the parties reconciled, provisions of the separation agreement were no lon-
ger eective upon remarriage; wife entitled to inherit from husband’s real and
personal property upon his death).]
b. Party’s performance excused by breach of the party seeking enforcement.
i. Breach by one party does not automatically excuse the other party’s perfor-
mance under a separation agreement. [Long v.Long, 160 N.C. App. 664, 588
S.E.2d 1 (2003).]
ii. Breach by one party will relieve the other party of the obligation to perform if:
(a) e promises to perform are interdependent rather than independent and
(b) e breach was of a substantial nature, not caused by the fault of the other
party, and was committed in bad faith. [Smith v.Smith, 225 N.C. 189, 34
S.E.2d 148 (1945). See also Patterson v.Taylor, 140 N.C. App. 91, 535 S.E.2d
374 (2000) (citing Nisbet v.Nisbet, 102 N.C. App. 232, 402 S.E.2d 151
(1991)) (when the agreement is integrated, a party’s breach of its provisions
can relieve the nonbreaching party from her alimony obligations).]
iii. If the agreement unequivocally provides that provisions are dependent on each
other, the language controls. [Wheeler v.Wheeler, 299 N.C. 633, 263 S.E.2d 763
(1980) (when agreement provided that husband had contracted to pay alimony
only so long as wife “performs the conditions of this contract,” each party’s
respective duties were clearly interdependent).] For the procedure to determine
whether an agreement is integrated, see Section IV.G.4.c.v, above.
iv. When it is not clear whether or not the provisions of a separation agreement are
integrated, summary judgment is not appropriate. [Nisbet v.Nisbet, 102 N.C.
App. 232, 402 S.E.2d 151 (where agreement did not address whether provisions
requiring husband to pay alimony were dependent on wife’s compliance with
provisions in the same agreement dealing with visitation, noncohabitation, and
nonharassment, trial court erred in granting motion for summary judgment on
wife’s claim for alimony arrearages), review denied, 329 N.C. 499, 407 S.E.2d
538 (1991); White v.Bowers, 101 N.C. App. 646, 400 S.E.2d 760 (1991) (where no
clause in the agreement in question addressed integration, court must look to
intention of the parties, making summary judgment inappropriate).]
v. When an agreement does not clearly and unequivocally state the parties’
intent, the court must hold an evidentiary hearing and apply a presumption of
separability.
vi. Cases nding provisions independent.
(a) Provisions for custody and visitation were independent from provisions for
support and maintenance; wife’s breach of the visitation provision did not
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relieve husband of obligation to pay support and maintenance. [Williford
v.Williford, 10 N.C. App. 451, 179 S.E.2d 114, cert. denied, 278 N.C. 301,
180 S.E.2d 177 (1971); Martin v.Martin, 204 N.C. App. 595, 696 S.E.2d 925
(2010) (unpublished) (parties intended for all provisions of the unincor-
porated separation agreement to be independent of each other; breach by
plainti of provisions allowing defendant visitation did not excuse defen-
dant’s obligation to pay one-half of children’s college expenses).]
(b) Husband’s duty to pay alimony was independent of wife’s duty not to inter-
fere with husband; husband’s duty to pay certain sums as provided in the
agreement in lieu of support not excused by wife’s breach of the “no moles-
tation” clause. [Smith v.Smith, 225 N.C. 189, 34 S.E.2d 148 (1945).]
(c) “No interference” provision was independent from any other provision
of the agreement; husband’s breach of the provision was not excused by a
nding that wife also had breached the agreement by conducting herself in
a manner that was not best for the parties’ children. [Long v.Long, 160 N.C.
App. 664, 588 S.E.2d 1 (2003).]
vii. Waiver/ratication of a breach.
(a) A breach that might otherwise excuse performance will not do so if waived
by the nonbreaching party. [Wheeler v.Wheeler, 299 N.C. 633, 263 S.E.2d
763 (1980) (where husband paid alimony to wife, when she only partially
performed the child visitation provisions of their separation agreement,
husband could not assert wife’s breach in defense of her action for back ali-
mony; by continuing to accept wife’s partial performance and continuing to
perform his alimony obligation over a period of time, husband had waived
his right to assert wife’s breach).]
7. Statute of limitations.
a. e statute of limitations applicable to an incorporated agreement is the statute of
limitations applicable to judgments, which is ten years. [G.S.1-47(1).]
8. Application of foreign law is prohibited if it results in a violation of constitutional rights.
a. e application of foreign law in cases under G.S.Chapters 50 (Divorce and Ali-
mony) and 50A (Uniform Child Custody Jurisdiction and Enforcement Act) is pro-
hibited when it would violate a fundamental right of a person under the federal or
state constitution. A motion to transfer a proceeding to a foreign venue must be
denied when doing so would have the same eect. [See G.S.1-87.14, 1-87.17, and
other provisions in Article 7A in G.S.Chapter1, added by S.L. 2013-416, eective
Sept. 1, 2013, and applicable to proceedings, agreements, and contracts entered into
on or after that date.]
9. Estoppel/Ratication.
a. A party may be estopped from denying the validity of a separation agreement if:
i. at party has performed under or accepted benets of the agreement over
time. [Spencer v.Spencer, 156 N.C. App. 1, 575 S.E.2d 780 (2003) (father was
estopped from denying an obligation to pay half of daughter’s college expenses
when he had paid them for three years; father accepted the benet of the
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agreement that allowed him to claim the child as a tax dependent while in
college); Moore v.Moore, 108 N.C. App. 656, 424 S.E.2d 673 (husband estopped
from asserting that notarization of an agreement was invalid since he treated
it as valid for two years and enjoyed the benets of the agreement), a’d per
curiam, 334 N.C. 684, 485 S.E.2d 71 (1993).]
ii. However, ratication does not occur until the duress has ended. [See Pilos-
Narron v. Narron, 239 N.C. App. 573, 771 S.E.2d 633 (2015) (unpublished)
(ratica tion did not occur because duress continued throughout the time defen-
dant accepted benets under the contract).]
iii. at party “engage[d] in positive acts that amount[ed] to ratication resulting in
prejudice to an innocent party.” [Chance v.Henderson, 134 N.C. App. 657, 664,
518 S.E.2d 780, 784 (1999) (citing Howard v.Boyce, 254 N.C. 255, 118 S.E.2d 897
(1961)) (husband’s positive acts included failing to perfect two appeals directed
at the order, acquiescing in his counsel’s reliance upon the order to deter action
by the Department of Social Services, twice ling motions for modication
or correction of the order, and, most signicantly, seeking to have wife held in
contempt for violation of the consent order).] For cases discussing ratication in
the context of a party’s failure to disclose, see Honeycutt v.Honeycutt, 208 N.C.
App. 70, 701 S.E.2d 689 (2010), and Rolls v.Rolls, 208 N.C. App. 569, 706 S.E.2d
842 (2010) (unpublished), review denied, 365 N.C. 70, 706 S.E.2d 238 (2011),
discussed in Section IV.I.4.h.ii.(c), above.
iv. e other party relied upon and performed obligations under the agreement.
[Amick v.Amick, 80 N.C. App. 291, 341 S.E.2d 613 (1986) (wife had performed
her obligations, relied on the agreement, and formed expectations of future sup-
port from husband based on his partial compliance with agreement’s terms for
four years; husband also estopped from denying the validity of the agreement by
his own conduct).]
b. However, a void contract cannot be the basis for ratication or estoppel. [Kelley v.
Kelley, 798 S.E.2d 771 (N.C. Ct. App. 2017) (husband was not estopped from assert-
ing the invalidity of an agreement due to his performance under the contract for
years; estoppel and ratication cannot be used to enforce an agreement that was void
when executed).]
c. A party may be estopped from asserting the invalidity of a bigamous marriage.
i. While wife’s bigamous marriage was not a “remarriage” as that term was used
in the separation agreement, wife was estopped from asserting the invalidity of
that marriage so that she could continue to receive alimony from her rst hus-
band on the ground that she had not remarried. [Taylor v.Taylor, 321 N.C. 244,
362 S.E.2d 542 (1987) (wife’s bigamous second marriage could not be used as a
defense to rst husband’s action to terminate his obligation for spousal support
pursuant to the parties’ separation agreement).]
J. Eect of Bankruptcy
Important Note: Except as noted, this section describes provisions of the federal bankruptcy law eective
Oct. 17, 2005.
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1. Bankruptcy reform legislation.
a. On Apr. 20, 2005, the federal Bankruptcy Abuse Prevention and Consumer Protec-
tion Act of 2005 [Pub. L. No. 109-8, 119 Stat. 23 (2005) (hereinafter the “Bankruptcy
Reform Act”)] was signed into law. It amended certain provisions of the Bankruptcy
Code. e amendments relating to family law were eective Oct. 17, 2005, and apply
to bankruptcy cases commenced on or after that date.
b. For an overview of the Bankruptcy Reform Act in the area of family law, see John L.
Saxon, Impact of the New Bankruptcy Reform Act on Family Law in North Carolina,
F. L. B. No. 20 (UNC School of Government, June 2005) (hereinafter 2005
Saxon Bulletin).
c. e provisions of the Bankruptcy Code in eect before passage of the Bankruptcy
Reform Act relating to family law matters will continue to apply in bankruptcy cases
led before Oct. 17, 2005, and pending on or after that date.
d. Additionally, provisions of the Bankruptcy Code in eect before passage of the
Bankruptcy Reform Act that were not amended or repealed will continue to apply in
bankruptcy cases that are led on or after Oct. 17, 2005.
e. For the eect of bankruptcy in an equitable distribution proceeding, see Equitable
Distribution Overview and Procedure, Bench Book, Vol. 1, Chapter6, Part 1.
f. For the eect of bankruptcy in child support enforcement proceedings, see Enforce-
ment of Child Support Orders, Bench Book, Vol. 1, Chapter3, Part 4.
g. For the eect of bankruptcy when alimony is at issue, see Postseparation Support and
Alimony, Bench Book, Vol. 1, Chapter2.
2. Denitions.
a. Domestic support obligation.
i. A “domestic support obligation” is a debt that:
(a) Accrues before, on, or after the date of the order for relief in the bankruptcy
case, including interest that accrues on that debt as provided under appli-
cable nonbankruptcy law, notwithstanding any other provision of Title 11;
[11U.S.C. §101(14A).]
(b) Is owed to or recoverable by the debtor’s spouse, former spouse, or child,
the child’s parent, legal guardian, or responsible relative, or a governmental
unit; [11 U.S.C. §101(14A)(A).]
(c) Is in the nature of alimony, maintenance, or support (including assistance
provided by a governmental unit) for a debtor’s spouse, former spouse, or
child, or for the child’s parent; [11 U.S.C. §101(14A)(B).]
(d) Has been established or is subject to establishment before, on, or after
the date of the order for relief by a court order, divorce decree, separation
agreement, property settlement agreement, or determination by a govern-
mental unit in accordance with applicable nonbankruptcy law; [11 U.S.C.
§101(14A)(C).] and
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(e) Has not been assigned to a nongovernmental entity, unless the assign-
ment is voluntary and for the purpose of collecting the debt. [11 U.S.C.
§101(14A)(D).]
ii. e following language in a separation agreement was found to create a
domestic support obligation in husband’s proceeding under Chapter13 of the
Bankruptcy Code: “In lieu of periodic spousal support payments to WIFE,
HUSBAND shall pay monthly to WIFE an amount equal to one-half of the
minimum monthly payments for the joint marital debts” listed elsewhere in the
agreement. “In consideration of, and expressly dependent upon these terms,
WIFE agrees that she shall release and forever discharge the HUSBAND from
any and all claims, demands, or actions for support, subsistence and mainte-
nance, alimony or claims and demands of any nature whatever arising out of
the marital relationship between the parties hereto.” [In re Deberry, 429 B.R.
532, 535 n.3 (Bankr. M.D.N.C. 2010) (other portions of wife’s claim found not to
constitute a domestic support obligation).]
b. Debts arising from a separation or divorce other than those that qualify as a domestic
support obligation.
i. 11 U.S.C. §523(a)(15) identies a second type of divorce-related debt, that is,
a debt to a spouse, former spouse, or child of the debtor, that is not a domestic
support obligation, which is incurred by the debtor in the course of a divorce
or separation or in connection with a separation agreement, divorce decree, or
other order of a court of record.
ii. Debts under 11 U.S.C. §523(a)(15) commonly are referred to as being in the
form of a property settlement, while debts under §523(a)(5) commonly are
referred to as alimony or support. [See In re Zeitchik, 369 B.R. 900, 903 (Bankr.
E.D.N.C. 2007) (not subject to the Bankruptcy Reform Act) (court had to deter-
mine whether payments at issue were “in the form of alimony or support or
[we]re in the form of a property settlement”).] A §523(a)(15) debt is sometimes
referred to herein as “a divorce-related debt that does not qualify as a domestic
support obligation.”
iii. Whether a debt is classied under 11 U.S.C. §523(a)(5) as a domestic support
obligation or under §523(a)(15) as a divorce-related debt that does not qualify
as a domestic support obligation is signicant in several contexts, including the
priority given to, and the dischargeability of, the debt. [See 2005 Saxon Bulletin;
In re Deberry, 429 B.R. 532 (Bankr. M.D.N.C. 2010) (citing In re Johnson, 397
B.R. 289 (Bankr. M.D.N.C. 2008)) (if an obligation of the debtor is deemed a
domestic support obligation pursuant to §523(a)(5), then the claim is entitled to
priority treatment under 11 U.S.C. §507(a)(1)(A), and any Chapter13 plan must
provide for its full payment pursuant to 11 U.S.C. §1322(a)(2)).]
3. Dischargeability of support and other divorce-related claims.
a. Discharge in a Chapter7 case commenced on or after Oct. 17, 2005.
i. A debt for a domestic support obligation (DSO) is nondischargeable in a
Chapter7 case. [11 U.S.C. §523(a)(5); 2005 Saxon Bulletin.]
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ii. A divorce-related debt that is not a DSO is nondischargeable in a Chapter7
case. [11 U.S.C. §523(a)(15); 2005 Saxon Bulletin.]
iii. us, distinctions between a DSO, governed by 11 U.S.C. §523(a)(5), and other
types of divorce-related debts, governed by 11 U.S.C. §523(15), are immaterial
in a Chapter7 case, as both types of debts are nondischargeable. [In re Johnson,
397 B.R. 289 (Bankr. M.D.N.C. 2008) (citing In re Douglas, 369 B.R. 462 (Bankr.
E.D. Ark. 2007)).]
b. Discharge in a Chapter13 case commenced on or after Oct. 17, 2005.
i. A debt for a domestic support obligation (DSO) is nondischargeable in a
Chapter13 case. [11 U.S.C. §523(a)(5); 11 U.S.C. §1328(a)(2).]
ii. A divorce-related debt that does not qualify as a DSO is dischargable in a
Chapter13 case. [11 U.S.C. §1328(a) (no exception for a §523(a)(15) debt).]
iii. EXCEPTION: A divorce-related debt that does not qualify as a DSO is not
discharged in a Chapter 13 case when the debtor applies for and is granted a
discharge pursuant to 11 U.S.C. §1328(b), referred to sometimes as a hardship
or best eorts discharge. [11 U.S.C. §523(a); In re Knox, No. 07-11082, 2007 WL
1541957 (Bankr. E.D. Tenn. May 23, 2007).]
K. Eect of Cohabitation by the Dependent Spouse
1. Law applicable to actions led before Oct. 1, 1995, and to actions not subject to
G.S.50-16.9(b).
a. Under the law in eect before Oct. 1, 1995, in the absence of a specic agreement
between the parties, a trial court had no authority to include a provision in its ali-
mony award that alimony could automatically terminate upon a spouse’s cohabi-
tation with someone of the opposite sex. [Bookholt v.Bookholt, 136 N.C. App. 247,
523 S.E.2d 729 (1999) (automatic termination of alimony for cohabitation under
G.S.50-16.9(b) only applicable to actions led on or after Oct. 1, 1995).]
b. Under this earlier law, a party was relieved of obligations under an unincorporated
separation agreement based on the other party’s cohabitation only if the separation
agreement so provided. [Sethness v.Sethness, 62 N.C. App. 676, 303 S.E.2d 424 (1983)
(the agreement here did not make cohabitation by wife a breach of the agreement or
grounds for termination of husband’s support obligation).]
c. Upon sucient showing of wife’s cohabitation, husband’s alimony obligation
terminated pursuant to an incorporated separation agreement that provided alimony
terminated on cohabitation. [Rehm v.Rehm, 104 N.C. App. 490, 409 S.E.2d 723
(1991).]
2. In actions led on or after Oct. 1, 1995, court-ordered support obligations are terminated
by cohabitation of the dependent spouse. [G.S.50-16.9(b), amended by S.L. 1995-319, §§7
and 12, applicable to actions led on or after Oct. 1, 1995.]
3. Cohabitation:
a. Means the act of two adults dwelling together continuously and habitually in a
private heterosexual relationship, even if not solemnized by marriage, or a private
homosexual relationship; and
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b. Is evidenced by the voluntary mutual assumption of those marital rights, duties, and
obligations that are usually manifested by married people and that include, but are
not necessarily dependent on, sexual relations. [G.S.50-16.9(b), amended by S.L.
1995-319, §§7 and 12, applicable to actions led on or after Oct. 1, 1995.]
c. For more on cohabitation, including the two methods used to determine whether
parties have cohabitated and the use of summary judgment, see Postseparation
Support and Alimony, Bench Book, Vol. 1, Chapter2. For a North Carolina Supreme
Court case on cohabitation, see Bird v.Bird, 363 N.C. 774, 688 S.E.2d 420 (2010)
(court-ordered alimony).
4. Procedural issues.
a. A supporting spouse cannot automatically cease paying court-ordered support based
on the dependent spouse’s cohabitation or remarriage without a court order. e
supporting spouse must rst le a motion with the trial court, notify the dependent
spouse, and obtain a court order terminating support as of a date certain. [William-
son v.Williamson, 142 N.C. App. 702, 543 S.E.2d 897 (2001) (trial court terminated
obligation as of date cohabitation was found to exist).]
b. A motion to terminate alimony based on cohabitation should be made pursuant to
G.S.50-16.9, not G.S.1A-1, Rule 60(b)(1). [Oakley v.Oakley, 165 N.C. App. 859, 599
S.E.2d 925 (2004) (incorporated separation agreement).]
5. Incorporated agreements.
a. Court-ordered alimony terminates upon cohabitation even if parties attempt to pro-
vide otherwise in an incorporated agreement. [Underwood v.Underwood, 365 N.C.
235, 717 S.E.2d 361 (2011).]
b. Where payments required pursuant to incorporated agreement were “true” alimony,
payments terminated upon cohabitation under G.S.50-16.9(b) despite fact that par-
ties included an integration clause in the agreement. [Underwood v.Underwood, 365
N.C. 235, 717 S.E.2d 361 (2011).]
6. When unincorporated separation agreement is involved.
a. While cohabitation will result in the termination of a support order entered by a
court, either as the result of a contested hearing or by a consent order, cohabitation
will not terminate a support obligation arising from an unincorporated separation
agreement unless so specied in the contract. [See Jones v.Jones, 144 N.C. App.
595, 548 S.E.2d 565 (2001) (where parties were subject to a court-ordered consent
judgment and an earlier unincorporated separation agreement, the provision in
the consent order for alimony terminated upon the wife’s cohabitation pursuant to
G.S.50-16.9 but her cohabitation did not terminate the contractual support provi-
sion in the agreement).].
b. When unincorporated separation agreement provided that husband’s obliga-
tion for “family support” would terminate upon wife’s cohabitation as dened in
G.S.50-16.9(b), summary judgment in favor of wife was reversed when evidence of
cohabitation was conicting. [Craddock v.Craddock, 188 N.C. App. 806, 656 S.E.2d
716 (2008) (conicting evidence was presented on number of nights per week third
party stayed overnight at wife’s residence, whether third party permanently kept his
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clothes at wife’s residence, and the extent to which third party used wife’s residence
as the base for his appraisal business).]
c. When unincorporated separation agreement permitted termination of alimony
payments upon cohabitation by wife as dened in G.S.50-16.9, to conclude that
cohabitation has occurred, a trial court must make ndings that the types of acts set
out in G.S.50-16.9 took place. [Long v.Long, 160 N.C. App. 664, 588 S.E.2d 1 (2003)
(trial court’s order lacked adequate ndings to support a conclusion of cohabitation;
ndings were mere recitations of testimony and evidence).]
7. Cases ndings no cohabitation.
a. No cohabitation by wife when evidence did not show activities beyond a sexual rela-
tionship with a boyfriend and their occasional trips and dates. [Oakley v.Oakley, 165
N.C. App. 859, 599 S.E.2d 925 (2004) (objective evidence on cohabitation not con-
icting, so subjective intent of parties not examined).]
b. No cohabitation by wife when ndings primarily revealed (1) that boyfriend assisted
in some ways with wife’s children; boyfriend and wife had a dating and sexual rela-
tionship; the two had dinners together when boyfriend was in town and spent time
together shopping, attending church, and traveling; (2) that boyfriend maintained
his own “lived in” residence and did not keep toiletries or clothing in wife’s home,
did not receive mail there, and did not pay household expenses; and (3) that wife and
boyfriend did not maintain nancial accounts together. [Shaw v.Shaw, 182 N.C. App.
347, 641 S.E.2d 867 (2007) (unpublished) (facts did not show a mutual assumption
of marital rights, duties, and obligations usually manifested by married persons).]
8. Whether support payments are dependent on the other parent’s compliance with provi-
sions in the separation agreement, including a provision that prohibits cohabitation in the
presence of the children.
a. A parent’s contractual obligation to pay child support pursuant to an unincorpo-
rated separation agreement was not dependent on the other parent’s compliance with
provisions in the same agreement addressing visitation, nonharassment, or nonco-
habitation. [Nisbet v.Nisbet, 102 N.C. App. 232, 402 S.E.2d 151, review denied, 329
N.C. 499, 407 S.E.2d 538 (1991).]
b. But the question of whether a spouse’s contractual obligation to pay alimony was
dependent on the other spouse’s compliance with provisions in the same agreement
addressing visitation, nonharassment, or noncohabitation was a factual issue to be
resolved by determining the intent of the parties when they signed the agreement.
[Nisbet v.Nisbet, 102 N.C. App. 232, 402 S.E.2d 151 (unincorporated agreement was
silent on the question of whether provisions were dependent; trial court erred in
granting summary judgment on wife’s claim for alimony arrearages), review denied,
329 N.C. 499, 407 S.E.2d 538 (1991).]
9. For more on cohabitation, see Postseparation Support and Alimony, Bench Book, Vol. 1,
Chapter2.
L. Eect of Remarriage of the Dependent Spouse
1. Court-ordered support obligations are automatically terminated by remarriage of the
dependent spouse. [G.S.50-16.9(b); Garner v.Garner, 88 N.C. App. 472, 363 S.E.2d 670
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(1988) (construing unambiguous incorporated agreement that was silent on eect of
remarriage, alimony payments terminated pursuant to statute upon wife’s remarriage).]
a. Support arrearages that accrued before the dependent spouse’s remarriage and
remain unpaid on the date of remarriage may be recovered after remarriage from the
supporting spouse. Periodic payments of alimony that were not yet due and payable
on the date of remarriage were terminated upon the dependent spouse’s remarriage.
[Potts v.Tutterow, 340 N.C. 97, 98, 455 S.E.2d 156, 156 (1995) (using dictionary de-
nition of accrued alimony as “[a]limony which is due but not yet paid”).]
b. Court-ordered support payments that are part of an integrated agreement are not
true alimony and do not terminate as a matter of law upon remarriage of the depen-
dent spouse. [Lemons v. Lemons, 112 N.C. App. 110, 434 S.E.2d 638 (1993), review
denied, 335 N.C. 556, 441 S.E.2d 117 (1994); Hayes v.Hayes, 100 N.C. App. 138, 394
S.E.2d 675 (1990) (citing Marks v.Marks, 316 N.C. 447, 342 S.E.2d 859 (1986)).]
c. Payments that are part of a complete property settlement rather than alimony do
not terminate upon the dependent spouse’s remarriage. [Allison v.Allison, 51 N.C.
App. 622, 277 S.E.2d 551 (periodic payments to wife that were part of a property
settlement in which wife released rights to jointly held property did not terminate
upon wife’s remarriage), review denied, 303 N.C. 543, 281 S.E.2d 660 (1981); Michael
v.Michael, 198 N.C. App. 703, 681 S.E.2d 866 (2009) (unpublished) (when plain
language of an incorporated separation agreement clearly stated in the section of the
agreement entitled “Property Settlement” that husband’s monthly payments were
intended to be part of the property settlement and not alimony or other spousal sup-
port, and when parties specically waived alimony in the agreement, payments were
part of a property settlement and did not terminate on wife’s remarriage).]
d. A bigamous marriage is void ab initio, or from the outset, so it is not a “remarriage”
that bars a dependent spouse from receiving alimony. [Taylor v.Taylor, 321 N.C.
244, 362 S.E.2d 542 (1987) (however, the dependent spouse who knowingly entered
a bigamous marriage was estopped from asserting its invalidity so that she could
continue to receive alimony from her rst husband on the ground that she had not
remarried).]
2. Law applicable to actions not subject to G.S.50-16.9(b).
a. Unless a contrary intention is expressed, a dependent spouse’s remarriage termi-
nates the supporting spouse’s obligation of support under an unincorporated sepa-
ration agreement that is silent on the issue. [Medders v.Medders, 40 N.C. App. 681,
254 S.E.2d 44 (1979) (applying South Carolina law to an unincorporated separation
agreement that was silent on the question of the wife’s remarriage; nding by trial
court that support payments terminated upon wife’s remarriage upheld).]
M. Eect of Death of a Party
1. Eect of death on postseparation support and alimony obligations.
a. Court-ordered postseparation support or alimony terminates upon the death of
either the supporting or the dependent spouse. [G.S.50-16.9(b).]
b. A contractual support obligation may be enforced after the death of a spouse.
[See White v.Graham, 72 N.C. App. 436, 325 S.E.2d 497 (1985) (noting that the
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death of husband did not terminate his obligation in an unincorporated separation
agreement to support wife while she obtained a college degree, which his estate could
satisfactorily perform).]
2. Eect of death on child support obligations.
a. Obligation for child support pursuant to a court or administrative order, or pursuant
to G.S.110-132 or -133, terminates:
i. On the death of the minor child. [G.S.50-13.10(d)(1).] e supporting parent
remains liable for child support arrearages that accrued before the child’s death.
ii. On the supporting parent’s death. [G.S.50-13.10(d)(2).] e supporting parent’s
estate remains liable for child support arrearages that accrued before the par-
ent’s death.
b. A parent may create in a separation agreement an obligation to furnish child support
that survives the parent’s death and becomes an obligation of the parent’s estate. [See
Bradshaw v.Smith, 48 N.C. App. 701, 269 S.E.2d 750 (1980) (recognizing that father’s
common law duty to support his children terminated on his death but nding that
father had by separation agreement obligated himself to pay support, which obliga-
tion survived his death and for which his estate was liable).]
c. A parent’s obligation to pay child support survives death of the custodial parent.
[Shutt v.Butner, 62 N.C. App. 701, 303 S.E.2d 399 (support payments required of
husband under an incorporated separation agreement were properly ordered to be
paid to new custodian, child’s maternal grandparent), review denied, 309 N.C. 462,
307 S.E.2d 367 (1983).]
3. Eect of death on provisions dividing property.
a. Separation agreement providing for division and sale of entirety property within
certain period following divorce was enforceable as a contract, even though hus-
band died before divorce. [Riley v.Riley, 86 N.C. App. 636, 359 S.E.2d 252 (noting
that unexpected and untimely death is a constant possibility and in the absence of
indications to the contrary, the law assumes that parties make their contracts in light
thereof), review denied, 321 N.C. 121, 361 S.E.2d 596 (1987).]
b. Agreement that gave wife possession of the marital residence until the minor son’s
death, marriage, or emancipation, whereupon the parties to the agreement agreed
that marital residence would be sold and proceeds divided, was enforceable, even
though wife died before son reached majority. ough husband became record fee
simple owner of the entirety held realty by operation of law upon the death of wife,
he was bound to sell house and divide proceeds with wife’s estate when son no longer
lived there. [Shutt v.Butner, 62 N.C. App. 701303 S.E.2d 399 (husband’s obligations
under an incorporated separation agreement regarding the sale of the marital resi-
dence were not terminated by the death of his former wife; consent judgment incor-
porating the agreement provided that the judgment could be enforced against the
parties or their personal representatives), review denied, 309 N.C. 462, 307 S.E.2d 367
(1983).]
c. Payments that are part of a complete property settlement rather than alimony do not
terminate upon a spouse’s death. [2 Lee’s North Carolina Family Law §9.86 (5th ed.
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1999) (death has no eect on the right to future payments of an award of property;
the estate of the spouse has a claim for any portion of a property award that remains
unpaid).]
4. Eect of death on availability of civil contempt.
a. Because a trial court must nd that an alleged contemnor has the present ability
to comply, a party cannot bring a civil contempt action to enforce an incorporated
separation agreement against a person who is deceased when the contempt action
is initiated. [MacMillan v.ompson, 231 N.C. App. 170, 753 S.E.2d 741 (2013)
(unpublished) (motion in the cause interpreted to initiate a civil contempt action).]
N. Eect of Divorce
1. Divorce does not invalidate support provisions in a separation agreement unless the
agreement so provides. [Hamilton v.Hamilton, 242 N.C. 715, 89 S.E.2d 417 (1955) (unin-
corporated separation agreement terminated monthly support payments to wife only
upon remarriage, not upon entry of a decree of divorce). See also Haynes v.Haynes, 45
N.C. App. 376, 263 S.E.2d 783 (1980) (citing Hamilton) (agreement in a consent judgment,
whereby wife was to receive permanent alimony until her death or remarriage, was a con-
tractual right not terminated by subsequent divorce judgment).]
2. A party’s failure to le a claim for alimony before divorce did not bar enforcement of a
contractual alimony obligation contained in an unincorporated separation agreement.
[Long v.Long, 102 N.C. App. 18, 401 S.E.2d 401 (1991).]
O. Attorney Fees
1. General rule; exception for separation agreements.
a. As a general rule, contractual provisions for attorney fees are invalid in the absence of
statutory authority. [Carswell v.Hendersonville Country Club, 169 N.C. App. 227, 609
S.E.2d 460 (2005).]
b. e North Carolina Supreme Court has recognized an exception for contractual pro-
visions for attorney fees contained in separation agreements. [Carswell v.Henderson-
ville Country Club, 169 N.C. App. 227, 609 S.E.2d 460 (2005) (citing Bromhal v.Stott,
341 N.C. 702, 462 S.E.2d 219 (1995)); Potter v.Hileman Labs., 150 N.C. App. 326,
564 S.E.2d 259 (2002) (citing Bromhal as an exception to the general rule, as Brom-
hal permitted the enforcement of attorney fees provisions contained in a separation
agreement based on public policy interests); Lee Cycle Ctr. v.Wilson Cycle Ctr., 143
N.C. App. 1, 11 n.2, 545 S.E.2d 745, 752 n.2 (noting that the North Carolina Supreme
Court has carved out an exception to the general rule and permits the enforcement
of attorney fees provisions contained in separation agreements), a ’d per curiam, 354
N.C. 565, 556 S.E.2d 293 (2001).]
c. e trial court can enforce an attorney fee provision in a separation agreement by
order of specic performance. [Lasecki v. Lasecki, 809 S.E.2d 296 (N.C. Ct. App.
2017).]
2. e Bromhal v.Stott, 341 N.C. 702, 462 S.E.2d 219 (1995) decision.
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a. e North Carolina Supreme Court has interpreted G.S.52-10.1 to authorize a
married couple to include a provision for attorney fees in a separation agreement.
[Bromhal v.Stott, 341 N.C. 702, 462 S.E.2d 219 (1995) (holding that provisions within
separation agreements requiring the payment of attorney fees upon a breach by one
of the parties are not inconsistent with the public policy of our state and are legal,
valid, and binding under G.S.52-10.1).]
b. Public policy supports the inclusion of a provision in a separation agreement requir-
ing the payment of attorney fees upon a breach by one of the parties. [Bromhal
v.Stott, 341 N.C. 702, 462 S.E.2d 219 (1995) (recognizing that separation agreements
are dierent than other types of contracts where courts have frowned upon contrac-
tual obligations for attorney fees).]
3. Specic provisions that supported an award of attorney fees.
a. Agreement provided that a party was entitled to recover reasonable attorney fees and
other expenses incurred in an action to enforce provisions of the agreement. [Brom-
hal v.Stott, 341 N.C. 702, 462 S.E.2d 219 (1995) (trial court made extensive ndings
and conclusions as to the necessity of plainti bringing a lawsuit to enforce the agree-
ment and as to the substantial attorney fees and costs incurred in the enforcement
eort).]
b. Agreement provided that if a party failed to perform an obligation under the agree-
ment and the failure caused the other party to incur expenses, including reasonable
attorney fees, to enforce the obligation, the defaulting party must indemnify and hold
the other harmless from any such expense. [Edwards v.Edwards, 102 N.C. App. 706,
403 S.E.2d 530 (no error in award of attorney fees in an action for specic perfor-
mance of alimony provisions in a separation agreement where the parties specically
contracted for indemnication of such fees in the agreement), review denied, 329
N.C. 787, 408 S.E.2d 518 (1991).]
c. An award of attorney fees to husband in civil contempt action for wife’s failure to
comply with an order requiring wife to specically perform her obligations under an
unincorporated separation agreement was upheld. [Gen. Motors Acceptance Corp.
v.Wright, 154 N.C. App. 672, 573 S.E.2d 226 (2002) (in an unincorporated separa-
tion, agreement parties assigned a car and related debt to wife; in a consent judg-
ment adopted by the court as an order, wife was ordered to specically perform her
payment obligations under the agreement; in a civil contempt proceeding, award of
attorney fees to husband for wife’s failure to pay was upheld; award of fees was akin
to a court awarding attorney fees through a contempt proceeding for a spouse’s fail-
ure to pay a marital debt arising out of an equitable distribution award, for which an
award of attorney fees is permitted).]
d. Agreement provided that a party who failed to, among other things, perform any act
reasonably necessary to carry out the agreement without undue delay or expense
must reimburse the other party for any expense, including court costs, attorney fees,
and travel expenses which, as a result of this failure, become reasonably necessary to
carry out the agreement. [Danai v.Danai, 166 N.C. App. 279, 603 S.E.2d 168 (2004)
(unpublished) (husband’s attempt to frustrate the separation agreement’s terms cre-
ated a proper basis to award attorney fees under the separation agreement).]
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e. Agreement contained an “Enforcement” clause that allowed either party to recover
attorney fees if he or she sued to enforce the agreement. [Moon v.Moon, 160 N.C.
App. 708 (2003) (unpublished) (citing Bromhal v.Stott, 341 N.C. 702, 462 S.E.2d 219
(1995)) (award of attorney fees for the portion of wife’s claim attributable to specic
performance upheld), cert. denied, 358 N.C. 544, 599 S.E.2d 399 (2004). Cf. Hennessey
v.Duckworth, 231 N.C. App. 17, 752 S.E.2d 194 (2013) (provision in unincorporated
agreement, that losing party was solely responsible for all legal fees and costs upon
breach or in a suit for enforcement, was not applicable when later action between the
parties was not one for breach or specic performance of the agreement but became
a G.S.Chapter50 custody action).]
f. Attorney fees provision in an unincorporated agreement that “expresse[d] the gen-
eral intent ‘that the losing party pays all reasonable fees and costs that either side
may incur’ in litigation” did not preclude an award of statutory fees. [Hennessey
v.Duckworth, 231 N.C. App. 17, 22, 752 S.E.2d 194, 198 (2013) (provision in agree-
ment was not applicable to later action between the parties, but award of fees under
G.S.50-13.6 upheld).]
g. When attorney fees are authorized by an enforcement provision in an incorporated
separation agreement, the trial court is not required to make the ndings and conclu-
sions required by G.S.50-16.4. [See Jackson v.Penton, 206 N.C. App. 761, 699 S.E.2d
141 (2010) (unpublished) (provision provided that “Husband (defendant) shall pay
to Wife (plainti) any and all reasonable attorney’s fees incurred in enforcing this
[alimony] obligation”; G.S.50-16.4 not applicable).]
h. However, attorney fees are not allowed for research on the enforceability of an ali-
mony escalation provision that the trial court found contrary to public policy. [Jack-
son v.Penton, 206 N.C. App. 761, 699 S.E.2d 141 (2010) (unpublished) (provision
in incorporated separation agreement on which award of fees was based required
that fees be reasonable; court found fees awarded to enforce a provision that was not
enforceable were not reasonable).]
4. For attorney fees in alimony actions, see Postseparation Support and Alimony, Bench
Book, Vol. 1, Chapter2.
5. For attorney fees in child support actions, see Child Support Liability and Amount, Bench
Book, Vol. 1, Chapter3, Part 1.
6. For attorney fees in child custody actions, see Child Custody, Bench Book, Vol. 1,
Chapter4.
7. For attorney fees in equitable distribution actions, see Equitable Distribution Overview
and Procedure, Bench Book, Vol. 1, Chapter6, Part 1.
P. Appeal
1. Right to take an immediate appeal.
a. A nal order may be appealed as a matter of right to the court of appeals.
[G.S.7A-27(b)(2), added by S.L. 2013-411, §1, eective Aug. 23, 2013; 1-277(a).] A
nal judgment is one that disposes of the cause as to all the parties, leaving nothing
to be judicially determined between them in the trial court. [Hausle v.Hausle, 226
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N.C. App. 241, 739 S.E.2d 203 (2013); Duncan v.Duncan, 366 N.C. 544, 742 S.E.2d
799 (2013) (nal judgment generally is one that ends the litigation on the merits).]
i. An alimony order was nal and immediately appealable as of right pursuant to
G.S.l-277(a), even though it reserved the issue of attorney fees. Attorney fees
and costs are collateral issues and not part of the parties’ substantive claims.
[Duncan v.Duncan, 366 N.C. 544, 742 S.E.2d 799 (2013) (citing Budinich
v.Becton Dickinson & Co., 486 U.S. 196, 202–03, 108 S. Ct. 1717, 1722 (1988))
(announcing a bright-line rule applicable to any civil case disposing of the par-
ties’ substantive claims but leaving open the issue of attorney fees and costs);
Lucas v.Lucas, 209 N.C. App. 492, 706 S.E.2d 270 (2011) (citing Bumpers
v.Cmty. Bank of N. Va., 364 N.C. 195, 695 S.E.2d 442 (2010)) (alimony and equi-
table distribution judgment nal for purposes of appeal, even if a claim for attor-
ney fees under G.S.50-16.4 remained pending; claim for attorney fees under
G.S.50-16.4 is not a substantive issue or part of the merits of an alimony claim
under G.S.50-16.3A). See also Ray Haluch Gravel Co. v.Cent. Pension Fund, 571
U.S. 177, 134 S. Ct. 773 (2014) (holding, for federal appellate jurisdictional pur-
poses, that whether a claim for attorney fees is based on a statute, a contract, or
both, a pending claim for fees and costs does not prevent, as a general rule, the
merits judgment from becoming “nal” for purposes of appeal).]
ii. But when a custody order is appealed, the trial court loses jurisdiction to con-
sider a request for attorney fees arising from the custody case. [Balawejder
v.Balawejder, 216 N.C. App. 301, 721 S.E.2d 679 (2011); In re Scearce, 81 N.C.
App. 662, 345 S.E.2d 411, review denied, 318 N.C. 415, 349 S.E.2d 590 (1986).
But see Duncan v.Duncan, 366 N.C. 544, 742 S.E.2d 799 (2013), discussed in
Section IV.P.1.a.i, immediately above.]
b. Generally there is no right of immediate appeal of an interlocutory order. An inter-
locutory order is one made during the pendency of an action that does not dispose of
the case but leaves it for further action by the trial court in order to settle and deter-
mine the entire controversy. [Hausle v.Hausle, 226 N.C. App. 241, 739 S.E.2d 203
(2013).]
c. e court of appeals has held that an order setting aside a separation agreement
was an interlocutory order not subject to immediate appeal because setting aside
the agreement allowed plainti’s claims for equitable distribution and alimony to go
forward. [Johnson v. Johnson, 208 N.C. App. 118, 701 S.E.2d 722 (2010).] But see S.L.
2018-86, § 1, eective June 25, 2018, applicable to appeals led on or after that date,
amending G.S. 50-19.1 to provide that an order or judgment pertaining to the validity
of a premarital agreement as dened by G.S. 52B-2(1) is immediately appealable if
the order would be a nal order but for other claims remaining pending in the action.
d. Immediate appeal of an interlocutory order generally is allowed in three instances:
i. When the order aects a substantial right. [G.S.7A-27(b)(3)a., added by S.L.
2013-411, §1, eective Aug. 23, 2013; 1-277(a).]
(a) A substantial right is one which will clearly be lost or irremediably
adversely aected if the order is not reviewable before nal judgment.
[Peters v.Peters, 232 N. C. App. 444, 754 S.E.2d 437 (2014). See France
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v.France, 209 N.C. App. 406, 705 S.E.2d 399 (2011) (appeal from an order
that directed that sealed documents be unsealed aected a substantial right
and was immediately appealable).]
ii. In cases involving multiple parties or claims, when the order is nal as to some
but not all of the claims or parties and the trial judge certies the order for
immediate appeal by including in the order “that there is no just reason for
delay.” [G.S.1A-1, Rule 54(b); Duncan v.Duncan, 366 N.C. 544, 742 S.E.2d 799
(2013) (certication under Rule 54(b) permits an interlocutory appeal from
orders that are nal as to a specic portion of the case but which do not dispose
of all claims as to all parties).]
(a) Appeal of an alimony order that was interlocutory when led because of
pending child support and equitable distribution (ED) claims was no longer
interlocutory when those claims had been resolved by the time the appeal
was heard. [Crowley v.Crowley, 203 N.C. App. 299, 691 S.E.2d 727 (grant-
ing defendant’s motion to amend the record on appeal to reect entry of a
judgment resolving claims for ED, child support, and attorney fees), review
denied, 364 N.C. 749, 700 S.E.2d 749 (2010).]
iii. In cases involving multiple claims where immediate appeal is allowed by G.S.
50-19.1, S.L. 2018-86, § 1, eective June 25, 2018, applicable to appeals led on
or after that date, amended G.S. 50-19.1 to provide that an order or judgment
pertaining to the validity of a premarital agreement as dened by G.S. 52B-2(1)
is immediately appealable if the order would be a nal order but for other claims
remaining pending in the action.
e. Note also that the court of appeals has discretion to treat an appeal as a petition for
certiorari to review an interlocutory appeal. [N.C. R. A. P. 21(a)(1).]
f. For more on interlocutory appeals, see Cheryl Howell, Trial Court Jurisdiction
Following Appeal of an Interlocutory Order, UNC S. G’: O C
S B (June 15, 2016), http://civil.sog.unc.edu/trial-court-jurisdiction-following
-appeal-of-an-interlocutory-order.
2. Treatment of ndings of fact and conclusions of law by an appellate court.
a. When reviewing ndings of fact, an appellate court is strictly limited to determining
whether the trial judge’s underlying ndings are supported by competent evidence,
in which event they are conclusively binding on appeal, and whether those factual
ndings in turn support the judge’s ultimate conclusions of law. [Reeder v.Carter,
226 N.C. App. 270, 740 S.E.2d 913 (2013); Praver v.Raus, 220 N.C. App. 88, 725
S.E.2d 379 (2012) (citing Shipman v.Shipman, 357 N.C. 471, 586 S.E.2d 250 (2003))
(ndings of fact reviewed to determine whether they are supported by substantial
evidence).]
b. A trial court’s conclusions of law are reviewed de novo and are subject to full review.
[Reeder v.Carter, 226 N.C. App. 270, 740 S.E.2d 913 (2013).]
3. Standard of review.
a. e standard of review of an order entered following a bench trial is “whether there
is competent evidence to support the trial court’s ndings of fact and whether the
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ndings support the conclusions of law and ensuing judgment.” [Ebert v.Ebert, 223
N.C. App. 520, 735 S.E.2d 451 (2012) (unpublished) (citing Curran v.Barefoot, 183
N.C. App. 331, 334, 645 S.E.2d 187, 190 (2007)).]
b. In reviewing the equitable remedy of specic performance, the appellate court is lim-
ited to an abuse of discretion standard. [Ebert v.Ebert, 223 N.C. App. 520, 735 S.E.2d
451 (2012) (unpublished) (citing Harborgate Prop. Owners Ass’n v.Mountain Lake
Shores Dev.Corp., 145 N.C. App. 290, 551 S.E.2d 207 (2001)).]
4. Eect of an appeal on jurisdiction.
a. Pursuant to G.S.1-294, when an appeal is perfected, the trial court is divested of
jurisdiction “upon the judgment appealed from, or upon the matter embraced
therein, unless otherwise provided by the Rules of Appellate Procedure.” [G.S.1-294,
amended by S.L. 2015-25, §2, eective May 21, 2015. See France v.France, 209
N.C. App. 406, 705 S.E.2d 399 (2011) (appeal of an order entered November 2009,
denying motions to close court proceedings pursuant to provisions contained in
a separation agreement and for a preliminary injunction, divested the trial court
of jurisdiction over the second matter, a proceeding by media movants for access
to proceedings and sealed documents; judge’s second order, in December 2009,
providing for open proceedings and unsealing of documents vacated for lack of
jurisdiction).] EXCEPTION: Notwithstanding the provisions of G.S.1-294, certain
orders are enforceable by civil contempt pending appeal. [G.S.50-13.3(a) (orders for
custody and visitation); 50-13.4(f)(9) (orders for child support); 50-16.7(j) (orders for
alimony).] See Section IV.I.3, above, for more on contempt.
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