Enforcement of a Settlement Agreement
Settlement agreements generally fall into two categories: Negotiated Settlement Agreements or Mediated Settlement Agreements. Parties and their lawyers can, and often do, settle all the issues of the divorce before trial. This involves negotiation back and forth between lawyers after consultation with their clients. This type of negotiated settlement is very similar to settlement in other types of civil cases. If agreement can be reached, the language describing the agreement is placed into a final decree and then “proved up” in court.
A Mediated Settlement Agreement results from the process of mediation. Mediation does not involve a Judge or Arbitrator who has control over the decisions in the case. A mediator is a facilitator. Most often mediation involves parties coming to the mediators office where they are separated with their lawyers in different conference rooms. The mediator then goes back and forth finding out what the parties major interests and concerns are. Ultimately, he suggests resolutions to the major stumbling points. If agreement can be reached by the parties in this process, a mediated settlement agreement is signed by the parties, which becomes binding and takes effect immediately. The mediated settlement agreement is then memorialized in an Agreed Final Decree and presented to the Judge.
It is usually assumed after any type of settlement agreement that the other party will follow the agreement made. Unfortunately, this is not always the case. After an agreement, a party may have “buyers remorse”, especially if the settlement addresses child support or spousal maintenance. We always tell our clients not to sign an agreement if they are not sure it is the right thing to do for them or their children. We remind them that the agreement is binding and they will not have the ability to change their mind later.
JUDGES LIKE SETTLEMENT
In practice, a settled agreement prior to decree is revocable in only the most exceptional circumstances and this usually involves fraud. Judges like it when the parties settle the case and will do all they can to encourage and validate settlements. In fact, many Courts now require mediation prior to allowing the parties a trial setting. Trial is an expensive proposition for parties and courts alike. if parties are able to come to terms, there is less chance of a party feeling he was treated unfairly by the system and less chance of that party failing to comply with the court’s orders. As well, everyone is in agreement that it is always in the best interest of the children when parents can cooperate.
SEEKING FULL PAYMENT AFTER A DIVORCE
Divorce is a difficult situation to begin with, and it is made exponentially more difficult when those who agree to abide by an agreement break their promise. Most people are relieved when they reach a final agreement and closure of their divorce. It is like a kick in the stomach when issues are brought up later. It is especially painful when someone relies heavily on child support or spousal maintenance that never comes or is late paid.
CONTEMPT OF COURT
At Chernoff Law, we have the experience and knowledge to enforce agreements between the parties. Fortunately, an agreement does not have to be prosecuted as a breach of contract, although in most situations when damages can be proven, that is an attractive solution. Most of the time agreements are broken after they have been memorialized in a final decree. A final decree constitutes a court order, even if the genesis of it is by agreement. As a result, an ex that refuses to comply with the terms of a court order can be prosecuted for contempt of court. Contempt of court can result in punishment that includes jail and/or fines. This punishment possibility often has a very persuasive effect on the ex-spouse.
In practice, many enforcement actions are remedied before a hearing. However, it is important to take immediate action when an ex-spouse is not complying. If you allow deviation from the decree without good reason, it will be difficult to prevent it later. When you are facing the problem of a recalcitrant ex-spouse give us a call at Chernoff Law. We will provide help immediately and get you on a path where you will no longer have to stress about whether your ex-spouse will continue to violate the terms of his agreement.