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Your divorce decree, child custody order, alimony order, award of attorneys fees, and child support order function as “private laws” governing only the parties involved: you and your ex-spouse or co-parent. Like any laws, these orders are only helpful if they can be enforced, or changed when circumstances warrant. And like any laws, family court orders are most effective when they are properly drafted. Often orders are prepared by the attorneys involved in the case instead of written by the court. Skilled drafting by your attorney thus is essential to help make the order capable of being followed, enforced if violated, and easily modified as needed in the future.
At Strickler, Platnick & Hatfield, we prepare proposed orders with an eye on practicality and enforceability for the present and flexibility for the future. We focus upon writing the order clearly, so the parties avoid returning to court just so a judge can interpret the terms litigated or negotiated. At the same time, we draft orders broadly enough to cover the issue at hand, and yet narrowly enough to be meaningful and enforceable.
Sometimes, no matter how well-written an order, the other party will violate it. When that happens, you may have no choice but to take enforcement measures; otherwise, the other side may continue pushing the envelope until the order is essentially meaningless.
The need for enforcement of an order may take many forms. An ex-spouse may refuse to turn over property they were ordered to surrender in the divorce settlement agreement, or may never pay alimony on time. When minor children are a part of the case, violation of a court order often involves refusing to make a child available for scheduled parenting time, repeated lateness to pick up or drop off a child, or failure to pay child support.
Whether the violations are intentional or not, they are irritating at best, and at worst, can endanger the well-being of the other party or a child. Steps to enforce the order should be taken promptly, although initial steps need not involve the court. It is important to document the violations as they occur and communicate them in writing (including email, text, or co-parenting app) to the other party. The point is not only to document the violation of the order, but the other party’s awareness of it. The hope is that the other party will then comply.
If the other party continues to violate the order, you should continue to document each violation and contact your attorney. A letter from your attorney may be more persuasive in getting the other party to comply with the order. If not, your attorney may have to file a motion to enforce the order and perhaps seek to hold the other party in contempt of court for failure to comply with the order. A finding of contempt may result in consequences such as make-up parenting time for an aggrieved parent, an award of attorney fees necessary to address the violation, a monetary judgment being entered, or even jail time for the most serious violations.
Remember that the goal of the court is to see compliance with its orders. Courts generally respond better to motions to enforce an order if the moving party can show that they first took reasonable measures on their own to obtain compliance. In contrast, courts tend to frown upon parties running into court to “tattle” about every minor infraction; such behavior often suggests the motivation is to punish the other party rather than to resolve an issue. If you are not sure whether the other party’s actions warrant a motion to enforce a court order, consult with your family law attorney. Of course, if the actions were so egregious that they constitute a threat (such as driving drunk with the children in the car or putting young children in an unsafe environment), you should not hesitate to contact your attorney, and contact the police immediately if appropriate.
Certain types of family court orders, like those involving the division and disposition of property during a divorce, usually are non-modifiable after the fact. Orders regarding alimony may specify that they are non-modifiable, especially where an agreement is involved. Other types of orders, like those involving child support or child custody, are always modifiable by necessity; circumstances regarding children frequently change, often making the original order no longer suitable or practical.
If one party wants to seek a change to a family court order that is modifiable, the easiest way to do so is to ask the other party if they would be willing to modify the order by agreement. If so, an attorney can prepare a new order reflecting the parties’ agreement and ask the court to incorporate the new order. Generally, the judge will sign the order unless it is patently objectionable for some reason (such as that the terms are not in the best interest of the children). Once the judge has signed the new order, the parties are bound by it.
Of course, the other party may be unwilling to agree to change an existing order. In that case, you will need to file a motion with the court requesting that the order be modified. In order for the court to grant your request, you will first need to show that there has been a “material change in circumstance” that warrants a reconsideration of the order. If you can show a material change, the court will consider modifying the order. If the order involves minor children, you will need to show not only that a material change has occurred since the time of the prior order, but that the proposed modification is also in the best interest of the children.
The attorneys at Strickler, Platnick & Hatfield have decades of experience in crafting new court orders and modifying existing ones. To learn more about the difference we can make in your case, we invite you to contact us to schedule a consultation.
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