Court Order vs. Separation Agreement
So we’re going to spend a moment here to talk about the difference between a court order and a separation agreement. So what we’ve been talking about so far is an agreement–an outside of court agreement–that’s the separation agreement.
The court order is different from the separation agreement in 2 ways. First of all, the way that you enforce a court order is different from the way you enforce a separation agreement. If you have a court order on child custody, and the other parent begins to violate that order, the way that you’re going to enforce the order is by filing a motion for contempt. The court then has the powers of contempt to compel that other parent to get on board with complying with that order.
If you file your motion for contempt, the judge actually has the ability to place the other parent in jail. That’s kind of a drastic measure, but there’s a lot of things that the judge can do, to make sure that that parent actually abides by the order that’s in place.
Now if you have a separation agreement, and a parent begins to not abide by the terms of the separation agreement – your enforcement mechanism’s going to be a little bit different.
Legally you have the right to sue for breach of contract; although, that’s kind of a difficult process. It’s a little bit of a more lengthy process, and it can be a very expensive process. The other thing that you can do, is you can simply go out and you can file a new action for child custody because you’ve agreed to something in a separation agreement, and you have this binding contract.
The court will still allow any parent at any time to go ahead, and move forward by filing a lawsuit for child custody. And at that point you’d be starting from scratch. It’s going to be wiping the slate clean. The judge is going to take a new look at your custody situation, and issue a brand new order on custody.
The other way that these 2 documents are going to be different is how are you going to modify them? With a court order, if it’s not working anymore, or if something changes and you need to change that court order–you file a motion to modify.
With a separation agreement, if you want to and you agree to the terms of the modification, you can make an amendment to your agreement. You basically create a new clause saying, “This replaces the previous one.” And you both sign again in front of notary–there’s nothing wrong with that. If you don’t agree, however, then you’ll do the same thing that I just mentioned with regard to enforcement. You don’t agree on the modification, you can just simply turn around and go file a brand new lawsuit for child custody and get issued a new order on custody.
Now I’ve got these 2 terms up here, “court order,” and “separation agreement.” But I also want to mention a third hybrid of these 2 things and that is what we call a consent order.
With a consent order, you are agreeing outside of court–you and your spouse or the other parent can negotiate the terms, the schedule, everything that you want to, without actually going before a judge. And you incorporate those terms into a document, and you call it a consent order.
Then you submit it to the court for the Judge’s signature. At that point you’ve creatively worked your schedule, you’ve maintained control over process, you’ve amicably reached an agreement on custody and you’ve incorporated that into a court order with the Judges signature. You get the benefit of being able to file for contempt or file for modification. That’s another option that you have. If you’re able to agree, you can always consider doing the consent order outside of the separation agreement.