I live in NC my husband and I separated a year and five months ago. We have a 10 year old daughter. We have a separation agreement that says he gets her from 8:00 at night until she goes to school the next morning and I get her from the time she gets out of school until she goes back to him that evening. Plus we split weekends. It was set like this bc I used to work third but I'm on first now. But the agreement says nothing about summer. Recently my mom was told she has heart problems. I tried to work it out with him to let me take my daughter with me but he won't. He already has two other children that he hasn't had much of anything to do with and is thousands of dollars behind on child support. They live in the same state as my mom and all my other family. I have no-one here and my daughter wants to leave as well. My question is if I leave with only a separation agreement that has never been signed by a judge just a notery will I get in trouble? Also can I file for custody there? Or will that cause me to loose my daughter?
1 Answer from Attorneys
A separation agreement is a contract and does not need to be signed by a judge to be valid. If you breach the terms of the separation agreement - it is possible your husband could file a suit to enforce the agreement and depending on if your separation agreement was properly drafted, he may also be able to pop you for attorney's fees. Changes in circumstances especially work schedules are very common and your separation agreement should have been drafted to accommodate these types of issues. At this point, you have two options: 1) attempt to reason with your husband and come to a mutual and fair modification of your current separation agreement or 2) consult with a family law attorney and get prepared to go to court. If you go to court, its most likely gonna cost ya - a lot. In the end, the judge is most likely going to do something fair that you two could have decided yourselves for free. You may want to mention that little aspect of things if your husband gives you a hard time. Finally, your question is a bit confusing. You start out discussing a shift change at work but then later you mention wanting to leave - presumably out of state to be closer to your mother. If you leave the state, you will not be able to file for anything in the new state until you have established jurisdiction. Further, again depending on if your separation agreement was drafted properly - you may be in breach of multiple sections. I would recommend you get divorced and address custody and support here before you leave.