Settlement Agreements: What if Your Former Spouse is Not Complying?

by Obermayer Rebmann Maxwell & Hippel LLP

iStock_000023708923SmallGoing through the divorce process is extremely difficult. Remembering that “this too shall pass” is a mantra that clients often find helpful. Unfortunately, not all divorces end upon receiving the Final Judgment of Divorce. So, what happens when your spouse refuses to comply with the terms of the agreement that you have reached? Not to worry, there is hope!

In New Jersey, we would advise you to file a post-judgment enforcement application. This application to the court is also referred to as a post-judgment motion. The term “post-judgment” means that you and your former spouse have already been granted a divorce. In the enforcement application to the court, you will need to highlight for the judge the term or terms of the agreement or court order that your former spouse is failing to comply with. You are required to provide the court with a copy of the agreement or court order that you are referencing in your enforcement application.  It is helpful if you point the judge to the page and paragraph of the agreement/order for which you are seeking compliance. Typically, agreements are very lengthy and it is unlikely that the court will read your entire agreement. Therefore, if you do the work for the court you are likely to get a better result. In addition to highlighting for the court the term(s) of the agreement/order for which you are seeking compliance, it is also extremely helpful to evidence to the court all of the efforts to resolve this matter before seeking court intervention. For example, if your former spouse was ordered to pay you child support starting January 1 and failed to do so, you will want to show the court that you sent letters, e-mails or text messages to ask for the payments after he/she failed to make the ordered payments. If you retain an attorney to assist you in filing the enforcement application and the court sees that you made your best efforts to gain compliance from your former spouse before filing your application, they may be inclined to award you counsel fees for your efforts.

Post-Judgment motions are generally filed on a Tuesday. Once they’re filed the court will give you a date to come in for oral argument. Oral argument is a tool that assists the court in understanding your application better. The return date (oral argument date) is generally scheduled 24 days after you file your motion. Your former spouse will then have 15 days before the oral argument date to oppose your motion, i.e. to tell the court why your relief should not be granted. You will then get the chance to respond to his/her opposition eight days before the oral argument date. These are the last papers that are filed. Your former spouse does not get any additional opportunities to respond.

Sometimes, once you file your application, your former spouse will simply start to comply, because he/she will not want to explain to the court why they are in violation of a court order. If you do proceed to oral argument, be confident! You have done nothing wrong! Just tell the court your story and why it is imperative that your former spouse starts to comply. If your former spouse continues to shirk his/her responsibilities under the order/agreement and you find yourself back in court on another (and another) enforcement application, you can seek sanctions against your former spouse, which may include counsel fees, and in certain circumstances, you may ask for him/her to be incarcerated.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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