Consider this scenario: you’ve spent a great deal of time, money and emotional energy achieving a resolution to the financial and child-related issues in your divorce. Most likely, you and your ex-spouse have reached a mutually-agreed Marital Settlement Agreement. Or your case has gone to trial and a judge has issued an order settling those issues.
Now, months or even years after the divorce decree was entered, your ex-spouse is not complying with the terms of the agreement or court order. What are your options?
- Clean Hands. Your first action is to read your agreement or order carefully and be sure that you are in compliance with its provisions before you ask a court to enforce those provisions against your ex-spouse. Under the equitable legal doctrine of “clean hands,” the law will not come to the assistance of a party who does not have clean hands himself. So first make sure that you have complied with all of the terms of your agreement or order and have acted in good faith before you go any further.
- Conditions Precedent. Your next step is to be sure that you have met any conditions spelled out in your agreement before you take enforcement action. Such conditions might include a requirement that you give written notice of the breach to the other party or that you participate in mediation before you take further actions to enforce the agreement. If there are such conditions spelled out in the agreement, be sure that you have complied with them before taking formal enforcement action.
- Make a Record. Take notes or create a document trail of the breaches of the agreement or order. This may consist of bank statements showing late or insufficient support payments or your own notes about violations of the access schedule with regard to your children.
- Reach Out Informally. Sometimes, an ex-spouse has simply failed to understand his or her obligations pursuant to the Agreement. In other situations, an appeal to your ex-spouse’s better self can be successful. Don’t jump to conclusions or use harsh language, but rather try to open a channel of communication based on a shared caring for your children or the desire to maintain a cordial relationship.
- Retain an Experienced Family Law Attorney with a Constructive Approach. Although taking legal action to enforce an agreement is an adversarial step, that does not mean that aggressive actions are appropriate. Adopt a careful, nuanced approach that seeks to preserve relationships while holding your ex-spouse responsible for complying with the agreement or court order that was achieved at such cost.
Although an unwelcome chapter in your post-divorce life, the need to enforce your divorce agreement or order need not take over your life. Utilize a thoughtful, step-by-step approach with the right professional to help you get beyond it.