Modifications, Enforcements, and Contempt
Absent a notable change in circumstances, your agreements and court orders that finalized your terms of separation or child custody should be considered final. But failure to comply with the obligations in your divorce order for property division, child custody, child support, or alimony can result in serious legal consequences. While your final court order is intended to be just that, courts recognize that life after litigation is a time of transition where circumstances can shift significantly. There is a process for amending these orders if you are unable to continue to abide by the terms or to require enforcement if your agreements and orders are being violated.
If life changes have resulted in you being unable to comply with an agreement or an order from your separation, you may be able to seek modification of the existing terms. The procedures needed to be taken to modify the terms will all depend on the issue involved and the method of how it was previously resolved. The procedures and process to modify a court order is different from the process and procedures for changing the terms of an out of court agreement. A knowledgeable attorney can provide guidance on the most efficient method for your specific situation.
Normally, property division issues are final. These are only subject to future modification when both parties consent to changes formally in writing and provide assurance that the division of property is final so closure can be achieved.
Courts are unable to modify the terms surrounding issues of post-separation support and alimony that were resolved in an out-of-court separation agreement. These agreements are only subject to modification with the consent of both parties in writing, with the same formality given for the initial agreement. However, when post-separation support and alimony are resolved in a court order, including consent orders, a court can usually modify those terms upon a motion and a showing of a proper cause for modification.
For matters related to the support and custody of your children, the court always has the authority to determine the best interests of the children and can enter orders on child custody and child support that modify existing orders or replace out-of-court parenting agreements. The requisite burden of proof is different depending on whether the current terms are in a court order or a parenting agreement. Some terms from an out-of-court child support agreement cannot be modified by a court, so it’s important to speak with a family law attorney when child support needs to be modified.
In the event you are unable to amicably resolve issues that require modification, a court will require you to prove that there has been a substantial change in circumstances. The court will compare the current factual scenario to the scenario that was present at the time the last order was made to determine if a substantial change in circumstances has occurred before considering a modification. For custody and support issues, the determination of whether there has been a substantial change in circumstances is in the judge’s discretion. Similarly, if the court determines there has been a substantial change in circumstances, the decision to modify the custody or support terms are at the judge’s discretion as to what is in the best interest of the child.
Enforcement and Contempt
In a perfect world, everyone would fully comply with terms of agreements they make or orders they must abide by. But the reality is that some parties must be forced to comply with reasonable terms already established. The process in place for a court to compel a party to fulfill their obligations under a court order is referred to as a contempt proceeding and begins when a party files a motion asking the court to hold the other party in contempt of the court order. When a party fails to comply with issues that were resolved by a separation agreement, the party seeking enforcement must file a new lawsuit for breach of contract to seek a remedy for the noncompliance of the other party.
Depending on the specific matter at hand and degree of non-compliance at issue, there are certain mechanisms in place for the enforcement of a pre-existing order. To punish a party for contempt, a court will need to find that the noncompliant party purposefully violated an order or agreement despite their ability to comply. Consequences can include verbal reprimands, sanctions, fines, payment of the other party's attorney fees, and in some cases jail time.
Whether you need modification of a child custody, child support, or spousal support order or require help with enforcement and contempt issues, guidance from a knowledgeable attorney is essential to ensure you to make informed decisions. An agreement or order that no longer works is not in anyone’s best interest. Our family law attorneys understand that enduring litigation and rehashing resolved issues from your separation will be a frustrating ordeal. We are skilled advocates and negotiators. We can help you resolve divorce and separation issues efficiently through negotiation and peaceful resolution first, and make every attempt to mitigate the financial and emotional costs that court proceedings may include. We can help you achieve the modification of the terms of your order to best suit the evolving needs of your family, and require non-compliant parties to be held accountable now and to future compliance. For a confidential consultation about how we can help you remedy these situations, contact the attorneys at Hopper Cummings today. Call 919-533-4115, or complete our online form.
MODIFICATION & ENFORCEMENT ARTICLES
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