When they separate after being in a relationship, people who are or were married usually resolve their disputes one of two ways, by obtaining a court order or by a contract usually but not always called a separation agreement.
Breach of Contract
Failure to do what was promised in a contract is a violation of it, called a breach of contract. This article assumes a valid contract has actually been made, and it doesn’t look at what defenses someone might have if he or she is sued for breach of contract. If you enter into a contract, you are legally obligated to perform accordingly. Contracts are usually enforced by money damages. Like Humpty Dumpty, the court tries to make the innocent party “whole” again, restored to the position they were in before the other person breached the contract. The law gives the person a legal remedy, they are then finished with the matter, and both are off to live happily ever after.
No Adequate Remedy at Law
Now consider the person in a family law situation. If you are entitled to child support but your ex won’t pay, a legal remedy to enforce the contract would mean that each month after no payment is made, you would sue your ex, have a trial to get a judge to make a ruling, and execute on a judgment for money owed. Needless to say, this legal remedy would be repetitive, expensive and time-consuming. The entire point of child support is to make sure the child is given shelter, food, transportation, etc. Going to court every month would give a completely opposite result. This means the law is substituted with what is called equity.
Remedy at Equity
When the legal remedy isn’t enough to make you whole again, the law is supplemented by equity. Family law is one of the few times when the court has the ability to rely on equity, which is based on justice and what is right and wrong, instead of relying just on a written statute. The distinction between the law and equity is also noticeable when you see it used as an attorney at law. Property claims for marital property are courts at equity because the judge must divide marital property equally “unless the court determines that an equal division is not equitable.” NC Gen. Stat. §50-20. In fact, the division of marital property is called equitable distribution. In several matters related to family law, a judge’s discretion is used, based on what is just and fair.
Family Law: Specific Performance
If the court doesn’t use financial damages to remedy the problem, what does it use? The answer is specific performance, enforcing a contractual obligation to act or perform in a specific way. Besides continuing and repetitive money paid every month, a family law contract may involve obligations such as signing a deed, returning family photos to the other spouse by a certain deadline, filing joint tax returns or naming someone as a beneficiary of life insurance. Money doesn’t fix those types of problems. These are examples of a promise to act or perform in a certain way.
In these instances, a judge will enter a decree of specific performance, ordering the other party to perform in the specific way he or she agreed to do. In the non-family law world, an actor who breaks a contract to star in a movie, for example, is not forced to go to the set and perform. Instead, the actor must suffer the penalty of paying money damages. But in the world of domestic law, a judge will order specific performance. Before a person is court-ordered to perform, the judge must be persuaded that you have performed as you agreed to do in the contract, and that the other party has the ability to perform as promised. If he or she only has the ability to partially perform as promised, that is what the judge will require.