Can I Change the Terms of a Separation Agreement in North Carolina After it is Signed?

In North Carolina, the terms of a Separation Agreement like any other contract can be modified, changed or destroyed at a later date. It is customary for Separation Agreements in North Carolina to have explicit language stated within the agreement that deals with the possibility of future modifications and the requirements necessary to modify an existing Agreement.

By inserting specific clauses dealing with modification, parties are usually forced to amend or execute a new agreement using the same formalities that were in place in order to execute the original Separation Agreement. Formalities that are usually required are (1) the signing of both parties under SEAL and (2) having each party sign the agreement in front of a Notary Public. Requiring identical formalities to execute a future contract protects the integrity of the current instrument and prevents future acts of fraud.

A modification must satisfy the same statutory formalities as the original agreement

In North Carolina an amendment to a separation agreement is itself a separation agreement for these purposes, so G.S. 52-10.1 applies to it: it must be in writing and acknowledged by both parties before a certifying officer as defined in G.S. 52-10(b), and that officer must not be a party to the contract. The consequence of getting this wrong is severe. In Kelley v. Kelley an improperly executed modification was void ab initio, and the court held that estoppel and ratification could not be used to enforce it.

This is why well-drafted North Carolina agreements set out an amendment clause requiring the same execution formalities. The clause does not create the requirement — the statute does — but it puts both spouses on notice that a handshake, an email exchange or a course of dealing will not alter the contract.

Oral modifications fail however clearly they were agreed

North Carolina courts have refused to give effect to oral variations even where both spouses acknowledged the conversation. In Jones v. Jones the parties were said to have agreed between themselves to change the alimony provisions of their separation agreement; the Court of Appeals held that, even if that were true, it could not modify the agreement, because an attempt to modify orally fails to meet the formalities and requirements of G.S. 52-10.1. Greene v. Greene is to the same effect.

The parol evidence rule reinforces the same result at the other end. In Lancaster v. Lancaster evidence of alleged oral agreements made before or at the time of signing was barred, because it would have added to or contradicted the written terms.

A court has no authority to rewrite an unincorporated separation agreement

An unincorporated separation agreement is a contract, and in North Carolina it can be modified only with the consent of both parties. Lasecki v. Lasecki states the rule plainly, and adds an important refinement: an order of specific performance for less than the amount due under the agreement does not reduce the party’s contractual liability for the balance. In Rose v. Rose the trial court erred by modifying the property settlement provisions of an unincorporated agreement without both parties’ consent.

A clause purporting to authorize a court to modify does not help. North Carolina courts have held that the district court’s lack of jurisdiction to modify an unincorporated separation agreement is not cured by language in the agreement inviting the court to do so — the parties cannot confer that authority by contract.

Incorporation is what makes court-ordered modification possible

Where the spouses submit the agreement to a North Carolina court and it is approved, Walters v. Walters treats it as a court-ordered judgment rather than a contract, and the statutory modification powers apply. G.S. 50-16.9(a) provides that an order for alimony or postseparation support, “whether contested or entered by consent, may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested,” and the section does not reach orders entered by consent before 1 October 1967. G.S. 50-13.7(a) applies the same formula to orders for custody and child support, subject in the case of support to G.S. 50-13.10, under which each payment vests as it accrues and cannot afterwards be vacated, reduced or modified unless a written motion is filed and due notice given to all parties before the payment falls due, or — where physical disability, mental incapacity, indigency, misrepresentation of another party or other compelling reason precluded an earlier filing — promptly after the moving party is no longer so precluded.

The word the statutes use is “may.” A showing of changed circumstances opens the question of modification; it does not decide it, and the court retains a discretion to leave the order as it stands. The comparison point is the date of incorporation, not the date of signature. In Smart v. State ex rel. Smart a husband’s discharge from the military and the drop in income that followed had occurred before the agreement was incorporated into the divorce judgment, and so could not support a later motion to modify child support.

Provisions dividing property are not modifiable even inside a judgment

In North Carolina the property settlement provisions of a separation agreement included in a consent judgment cannot be modified without the consent of both parties, whether or not those provisions form part of an integrated agreement. White v. White and Holsomback v. Holsomback establish the rule, and Holsomback adds that an agreed division of property set out in an incorporated consent judgment can be modified or set aside, absent consent, only for fraud or mistake and only in an independent action.

The application is strict. In Rudisill v. Rudisill, once the marital residence had passed to the wife under a consent judgment, the court could not later adjust the division by ordering the husband to pay for repairs to it.

Whether periodic payments can be reduced turns on integration

Where an incorporated agreement provides for periodic payments, a North Carolina court can modify them only if they are true alimony rather than part of a property settlement. Marks v. Marks draws the line: if the payments are reciprocal consideration for, and inseparable from, the property provisions, the agreement is integrated and the payments are not modifiable; if they are separable, they are true alimony and modifiable on a showing of changed circumstances under G.S. 50-16.9.

North Carolina applies a rebuttable presumption that the support and property provisions are separable rather than integrated, and the spouse resisting modification carries the burden of overcoming it. Clear drafting usually decides the question without a hearing, but not always: in Underwood v. Underwood the Supreme Court held that an agreement is not integrated even where it contains a clear integration clause if the rest of the document plainly shows the parties treated the payments as alimony. A standard merger clause is not an integration clause, as Holcomb v. Holcomb explains.

Terms about children remain open to the court whether or not the agreement was incorporated

In North Carolina no agreement between parents deprives a court of its authority to protect a minor child, so custody and child support provisions are always subject to later judicial determination. Where the agreement was incorporated, a change requires a showing of changed circumstances since incorporation under G.S. 50-13.7(a). Where it was not, either parent may seek an initial court order for child support under G.S. 50-13.4, and Pataky v. Pataky holds that no change of circumstances need be shown, because the resulting order is an initial order rather than a modification of the contract.

What the moving parent must show instead is the amount necessary to meet the reasonable needs of the child at the time of the hearing, measured against the factors in the first sentence of G.S. 50-13.4(c), and enough to rebut the presumption that the amount the parents agreed is just and reasonable. The contract itself survives that order and remains enforceable between the parents on its own terms.

Reconciliation can cancel terms without either spouse signing anything

A resumption of marital relations does what no oral agreement can. G.S. 52-10.2 defines resumption of marital relations as “voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances,” and provides that “[i]solated incidents of sexual intercourse between the parties shall not constitute resumption of marital relations.” In re Estate of Adamee and the cases following it hold that reconciliation voids the executory provisions of a separation agreement — those in which a party bound himself to do or not do something in the future — while executed provisions, already carried out and requiring no further performance, stand.

A later separation does not revive what reconciliation rescinded. G.S. 52-10(a1) is the exception, and it is limited to one subject: a contract made during a period of separation waiving, releasing or establishing rights to postseparation support, alimony or spousal support remains valid through a reconciliation and a subsequent separation, provided it is in writing, states the waiver clearly, and is acknowledged by both parties before a certifying officer. The subsection preserves that waiver and nothing else in the document.

Setting an agreement aside is a different exercise from changing it

North Carolina recognizes rescission on grounds that go to how the agreement was made: lack of mental capacity, mistake, fraud, duress and undue influence, as Sidden v. Mailman collects them, along with unconscionability, which requires both a procedural and a substantive element. These are attacks on validity rather than requests for different terms, and they are pursued by action rather than by motion in an existing case.

They are also time-limited. Claims of fraud, duress and undue influence carry the three-year period of G.S. 1-52, and in Dawbarn v. Dawbarn the period ran from execution because the spouse knew of the conduct complained of at the time. Where the agreement was executed under seal, an action on it carries the ten-year period of G.S. 1-47(2), and Crogan v. Crogan applies that same ten-year period to a rescission counterclaim raised in answer to it. Disputes of this kind are heard in district court, which G.S. 7A-244 makes the proper division for the enforcement of separation agreements regardless of the amount in controversy — Mecklenburg County District Court for spouses who separated in Charlotte.

Common questions

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.

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