In NC the divorce settlement is part of the divorce decree, or order. It would not be a breach of contract but a potential contempt of court if she failed to abide by the order.
I am not your attorney, I do not represent you. This response is submitted for informational purposes only. This is not legal advice, nor is it intended to be taken as such. Anyone considering the above referenced situation should always consult an attorney within the jurisdiction before taking any action based on this, or any other information.
If you and your ex entered into a written Property Settlement Agreement which was incorporated into the Final Judgment of Divorce a breach of that agreement can be actionable. Customarily a party would bring an application to Enforce Litigant's Rights requiring that the other party comply with the terms of the Agreement. In the facts you presented the question arises as to why you did not attempt to force the sale of the house in 2006. Did you ever write your ex as to the economic impact the failure to sell the home was having on you?
If you are looking for compensation then why wasn't this addressed at the time of the sale in 2009 and why are you looking to sue for money 2 years later.
I certainly hope you have a good paper trail to back up claims that you wanted the house sold but your ex refused or ignored your requests.
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It wouldn't be a separate suit for "breach of contract", pursuing the issue would involve filing a notice of motion to enforce litigant's rights.
Problems are jumping out at me based on the fact you're given, though. She was supposed to move out in 2006, but didn't do so until 2009 .... and you're not raising it until 2011? I've had matters where someone was supposed to move out but didn't and the court granted relief -- but that was when the ex was still in the home. You're talking about going back 2 years to seek damages from 2006-2009, I'd wager strongly that she will respond that some or all of: (1) you modified the PSA by your actions, (2) "Laches" - you sat on your rights, (3) There was an attempt at reconciliation. There's probably other similar issues she'd raise in defense.
I'm not saying it's hopeless, you might be able to get a couple of bucks out of her depending on all the facts, but your delay in raising the issue is going to hurt you.
The above is said without seeing your case file and without my understanding the entirety of the facts of your case. Depending on those facts, the above information be may incomplete or may be completely inaccurate. The above is intended as general information only based on what you described and not as legal advice. I advise you to consult with counsel who may be able to provide better information commensurate with a better understanding of your situation.
In theory, an agreement that is incorporated but not merged into a divorce order, remains enforceable under contract law and principles.
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