How to Get a Final Order of Divorce Enforced
Regardless of your personal situation and relationship with your former partner, seeking a divorce when shared assets and children are involved can be complex. Beyond making important decisions about child custody, child support and visitation rights, or division of shared assets and property, you need to ensure the final decisions and agreement are clear, accurate and binding once put in writing. A divorce attorney specializing in family law can offer valuable legal advice on all matters pertaining to your divorce, from navigating the issues to reach a resolution of the divorce action to assisting with enforcement of the signed settlement agreement and Final Order of Divorce once it has reached conclusion.
What is a Final Order of Divorce?
A Final Order of Divorce, sometimes referred to as a divorce decree, either incorporates the settlement agreement reached by the parties or sets forth the judge’s ruling if the case is litigated and is the document that actually grants the divorce. Simply signing a settlement agreement does not bring the matter to closure. The final step is having a judge sign a court order (the Final Order of Divorce) which grants the divorce.
This Order is essentially a summary of what each party is legally bound to do or refrain from doing pursuant to the settlement agreement entered into by the parties or pursuant to the terms ordered by a judge following a contested trial. Since the Final Order of Divorce is a court order, it must be followed by each party. If one of the former spouses willingly breaches the terms of the Final Order of Divorce (and/or the settlement agreement if that is incorporated into the Final Order of Divorce), that party may be found in contempt of court since they violated a court order and the court will have the power to sanction the breaching party.
How Can a Final Order of Divorce be Violated?
A Final Order of Divorce can be violated when one of the former spouses does not act in accordance with the terms – either by not following through with what he or she is legally obligated to do or by doing something the Final Order of Divorce prohibits them from doing. By way of example, if the parties sign a settlement agreement which provides for one party to list the marital home for sale within 60 days and the settlement agreement is incorporated into the Final Order of Divorce, if the party fails to list the home, a court can enforce this provision and hold the breaching party in contempt of court.
Violations of the Final Order of Divorce can include not only issues relating to property division and child support, but also disputes over child custody and visitation related matters. Issues with acting outside of the terms of the visitation and custody agreement and not paying child support are other common examples as to how the Final Order of Divorce could be violated. A study showed that the median amount of child support arrearage owed is over $6,000. When violations occur, such as a party failing to pay support and accruing a significant arrearage, you can file a petition for rule to show cause asking the court to hold the breaching party in contempt and sanction said party.
How to Get the Final Order of Divorce Enforced
If you file a petition for rule to show cause asking the other party to be held in contempt with the appropriate Virginia Circuit Court or Juvenile and Domestic Relations District Court, you must explain what specific term of the Final Order of Divorce or of the settlement agreement (if incorporated into the Final Order of Divorce) your former spouse violated and how they violated it. Once you file this petition, a date will be set for a court hearing. If the violation is an emergency, especially when dealing with urgent issues relating to a child, a shorter wait time for a hearing will be considered. Each party must be present to state their case and the defending party must be ready to show cause, if he or she can, that he or she either did not willfully violate the provisions at issue. If you are the one that filed the petition, you must ensure you have documentation and/or other evidence, such as witnesses, that provides proof that the violation occurred. If you are defending against such a petition, you will want to be similarly prepared to prove that you did not violate the settlement agreement and/or Final Order of Divorce.
Divorce is already a challenging situation to navigate on your own, so having legal help from a divorce lawyer is beneficial, especially with negotiating, setting, understanding and enforcing the terms of your settlement agreement and/or Final Order of Divorce. Even after your divorce is finalized, you may need an attorney’s assistance with enforcing the agreement and/or Final Order of Divorce, filing a petition for rule to show cause to ask that the breaching party be held in contempt, understanding the burden of proof for proving violations occurred and/or defending against any such claims, and generally navigating the court proceedings. If the court finds your former spouse violated the Final Order of Divorce, the court can sanction him or her using available remedies such as enforcing the specific provision, ordering him or her to pay legal fees and costs or in extreme cases and under certain conditions, sentence the violating party to jail time until the violation has been remedied.
Divorce can be a complex time, but engaging a divorce attorney to assist you can help alleviate some of the burden. Not only can they help you during the divorce proceedings and in setting the terms of the settlement agreement and/or Final Order of Divorce, but they can also advise you on post-divorce enforcement actions and your next steps if terms of your settlement and/or the court order are violated.
For assistance with navigating divorce proceedings in Virginia, or with the filing and enforcement of a settlement agreement and/or Final Order of Divorce and other post-divorce issues, contact your local Fairfax divorce lawyers and family law attorneys at Hite Kaminsky Family Law.