When you get divorced, your marital settlement agreement (MSA), also called a divorce settlement agreement, is attached to, and incorporated into, your final judgment of dissolution. It becomes a court order and is legally binding.
The terms of your MSA are critical. They will determine a lot about your post-divorce future (division of property, custody, spousal and child support, and the many factors that stem from those decisions, such as where you live and so forth). Further, some terms cannot be modified—and those that can be altered have stringent requirements for change, which must go through the court.
Each spouse will need their own lawyer. It is necessary to work with a qualified attorney when creating your MSA. Even if you and your partner anticipate a relatively straightforward divorce, a knowledgeable family law attorney can help ensure that specific crucial terms are included, no important details are overlooked, and the agreement is fair and balanced.
Once your MSA is written, and you have each signed off, a judge must approve it and file it with the court. It is then enforceable by the court and law enforcement—there are consequences for noncompliance.
So what happens if your ex-spouse does not abide by the terms of the MSA? What if they don’t pay the agreed-upon support or cover their share of marital debts? What if they consistently ignore custody and visitation arrangements or try to deny you parenting time?
If your ex violates the court order, there are several things you can do:
Act methodically. Remain calm and contact your attorney. Your lawyer can help you understand your rights, strategize, and walk you through the steps to take. It is best to avoid going to court in extreme or emergency circumstances.
Document all instances of noncompliance. Be sure to keep a record of what is happening so you can prove a pattern of behavior if necessary. Send your ex an email that addresses your concerns; explain how the agreement has been violated. Screenshot text exchanges, social media content/communications, and so forth.
Try talking it out. A divorce’s emotions, stress, and tension can make everything feel like an insult. But sometimes, there are legitimate misunderstandings and mistakes, and you can avoid conflict by having a calm and honest conversation. Maybe you’ll be able to resolve it on your own, and maybe not. In any case, you’ll be able to demonstrate that you tried to work through the issue reasonably.
Request a modification. Although it involves going to court, you may be able to ask for a modification to your agreement. You’ll have to prove that there has been a material change in circumstances; a judge may be persuaded by proof that the other parent disregards the court order, mainly if there are substantial violations related to custody and visitation or child support.
Contempt of court. When nothing else works, and your ex continues to disobey the terms of your MSA willfully, you can file a motion for contempt of court, which is an extreme step that should not be undertaken without careful consideration and trying other measures first. Contempt motions are complicated; they’re challenging to prepare and prosecute, and the burden of proof is significant. The consequences if the party is found guilty can be severe, ranging from changes in the parenting plan to financial sanctions (fines, fees, property liens, garnished wages) to jail time. You should not attempt to file for petty reasons (if a parent is a few minutes late to pick up/drop off a child or a few days behind on a payment), and never without an attorney.
A well-crafted MSA typically has a default clause. Terms may include that when one spouse violates the agreement, they are responsible for paying any legal fees the other incurs in seeking enforcement. Additionally, family court judges have broad discretion in how they enforce orders. These are powerful deterrents. A spouse who violates the MSA will often comply after lawyers get involved to avoid legal action and expenses.
If your ex-spouse ignores the terms of your divorce settlement, you should speak with a knowledgeable family law attorney immediately. SFLG’s skillful and compassionate lawyers understand the intricacies of marital settlement agreements and can help you navigate the challenges and frustrations of noncompliance.
by Debra Schoenberg