Critical Enforcement Mechanisms in Family Law
On many occasions in my practice, clients will complain that their spouse has been violating an agreement or court order. “She hasn’t been dropping the kids off on time,” or “he’s always late with his support check,” or the title to a vehicle was never signed over as required.
In a perfect world, everyone would follow what has already been agreed to, adhering to each and every detail laid out in a document adorned with each party’s signature. Unfortunately, divorce lawyers and their clients don’t operate in that utopian domain.
The truth is that reaching an agreement or having a judge enter a court order is only the first step in your family law matter. The second is making sure that it’s properly enforced, sending a clear message to the other party that violations are unacceptable and will be met with overwhelming force. Because without the utilization of enforcement mechanisms, your agreement or court order is just a piece of paper.
Here are some ways to ensure that your agreement or court order is actually followed:
Enforcement Provisions. When drafting an agreement, it’s helpful to include language that if one side is in violation and the other has to go to court to enforce the agreement, and the enforcing side wins, then the violating party has to pay all of the enforcing side’s attorney’s fees. This could easily run into the thousands of dollars and beyond, and can be an effective deterrent for anyone considering not adhering to an agreement.
Immediate Incorporation. Before an agreement can be effectively enforced, it must be incorporated into a court order, which is not difficult for your attorney to do. Once the agreement has been incorporated, it is no longer merely a contract between two people, but now carries the force of a court order. Violation of a court order is more egregious and easily rectified than violation of a contract.
Warning Letter. Before pursing costly and time-consuming litigation, your attorney may consider sending a letter to the other side, citing the violation and demanding corrective measures within a certain time frame. Sometimes this is all it takes to force the other side’s compliance. When someone is aware that their spouse’s attorney is a watchdog for and guardian of the agreement or court order, they tend to behave better.
Rule to Show Cause. In Virginia, a rule to show cause is used to hold someone in contempt of court for violation of a court order. This is a very serious matter, and the court has broad enforcement authority, including the power to jail someone for repeated and willful violations, which I have seen happen before. If your spouse is in violation, and they don’t have a compelling reason why (the court must find a willfulness component to the violation, and the party must “show cause” why they should not be held in contempt), then it will be an uncomfortable and costly experience for them.
Modification. If all else fails, sometimes a modification of an agreement or court order is necessary. This is obviously limited to areas that are modifiable, most notably custody and visitation terms. If one party refuses to comply in these areas, and various enforcement mechanisms have failed, then evidence of repeated violations can become a powerful tool in seeking a reduction of their visitation or creation of new custody terms that grant more authority and autonomy to the non-violating parent.
Livesay & Myers, P.C. has a team of experienced family law attorneys in Fairfax, Manassas, Leesburg and Fredericksburg, Virginia. For assistance with your family law matter in Northern Virginia, contact us to schedule a consultation today.