Parties going through a divorce often end up resolving the matter outside of court via a mediated settlement agreement. Divorces do not always end up having to be heated court battles. The great majority of them never make it to the courtroom.
However, what happens when parties come to a settlement agreement, but one ex-spouse decides to not follow the settlement agreement? Does the other party have any recourse?
Settlements Are Legal and Binding
After the parties have entered into an agreement and signed on the dotted line, the agreement is legal and binding, just as a regular contract.
Once parties sign the agreement, the judge approves it, and it is entered as incorporated in the court order. If a party violates the terms of the settlement agreement, he or she could be in contempt of court.
Essentially, a party cannot enter into an agreement to pay child support and then refuse to abide by the agreement without legal consequences. The other party will have recourse to enforce it.
According to the Texas Family Code, a mediated settlement agreement between parties is binding so long as the following requirements are met:
- the agreement must provide in a prominently-displayed area that is in boldface type or in capital letters or underlined, that the agreement is not subject to revocation;
- the agreement is signed by each party to the agreement; and
- the agreement is signed by the party’s attorney, if they have one, who was present at the time the agreement was signed.
Default Clauses
Most mediated settlement agreements include what are known as “default” clauses. These clauses tell parties what should be done if the other party is not following the agreement.
If an ex-spouse violates a clause in the settlement agreement, the other spouse must write a letter to the court with details regarding the violation. The offender will likely comply at that point to avoid a court action.
However, the letter is often just the first step. Sometimes an attorney does need to be hired to force the ex-spouse’s hand.
If the violations become persistent and it does not seem as if the ex-spouse will be cooperating, it may become necessary to file post-judgment enforcement proceedings.
One way to hopefully avoid this possibility is to threaten to request that the ex-spouse pay for the filing spouse’s attorney’s fees for having to enforce the agreement. The last thing the ex-spouse who is not cooperating will want to do is have to go to court and pay someone else’s attorney’s fees on top of that.
This clause can even be added to the default clause so that the threat of having to pay the other spouse’s legal fees is hanging over either party’s head, serving as “encouragement” for cooperation.
Legal Relief
If the ex-spouse still refuses to cooperate despite the written threat of legal action, the next step would be to file a motion for post-judgment enforcement proceeding.
Family court judges do have the power to hold the ex-spouse responsible and to offer a solution for when he or she fails to abide by the settlement agreement. The judge has the power to offer different types of compensation if the spouse is failing to abide by the order, as well as the power to enforce certain portions of the agreement that do not have an associated “financial” value to them.
If the violation is shown to be intentional and meant to punish the other spouse, jail time could even be a possibility.
When the other spouse is failing to cooperate, the thought of having to take legal measures to enforce the settlement agreement can be extremely intimidating. However, keep in mind that the settlement agreement is a binding, legal contract, and has just as much force as a final divorce decree would if the parties gone to trial.
If you are unsure of whether you should take your ex-spouse to court, it is always recommended that a trusted family law attorney be consulted. He or she can listen to the particular facts of the case and give the best advice possible. A family law attorney can help make sure that the agreement is properly implemented, and if court action is needed, that all goes as smoothly as possible.
Contact A Custody Lawyer Today
If you have questions about enforcing your settlement agreement, please contact family lawyers at Scott M. Brown and Associates. You can reach us by calling (979) 318-3075 or completing our online form. We have offices in Angleton, League City/Clear Lake, and Pearland.
