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11 Oct 17

Can the divorce be overturned if the divorce settlement is violated?

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Finalizing a divorce judgment isn’t necessarily the end of your divorce journey. You and the other party must still carry out the terms of the judgment. This might mean following a custody and parenting time schedule. It might mean signing a deed to the marital home or transferring titles on other property. It may require you to cash out a bank account and transfer funds.

In a perfect world, each party quickly does their respective tasks and the case ends. Unfortunately, parties don’t always do what they’re supposed to when it comes to carrying out the terms of the divorce. When that happens, you might wonder what you can do to change the terms of the divorce.

It depends on the circumstances

There are absolutely things that you can do to compel the other party’s compliance with the divorce judgment. Whether you can completely overturn the divorce settlement depends on the terms of the breach. The court might look first to try and compel the other side’s compliance with the divorce judgment. If that doesn’t work, they might look at ways to modify the judgment so that the other side can comply with it.

Compelling compliance

The court’s first goal when a party breaches the terms of the divorce judgment is to compel the party to comply. There are a number of ways that the court might do this. In some cases, simply initiating a court action to hold the other side accountable might be enough to get them to do what the order requires them to do. In other cases, the court may have to impose a penalty.

The court’s contempt power is wide. Parties should take court orders seriously and comply with them. When they don’t, the court can choose from a range of penalties in order to compel the other side’s compliance. They can charge the non-complying party a fine. They can even commit the party to jail. They can also modify the terms of the divorce judgment in order to make it something the other side is going to comply with.

The remedy depends on the breach

What the court decides to do depends on what the other side has failed to do. For example, if the divorce judgment says that the other side is to pay you $10,000 from an account and close the account, the other side may simply refuse to pay you. If that happens, you can file paperwork to ask for the court’s help to get what you’re owed under the judgment. The court might order the offending party to pay you a penalty in addition to paying you the funds you deserve. They might also order them to pay the court a fine. They can commit the party to jail until they arrange for transfer. However, jail is an extreme remedy that the court won’t impose except as a last resort.

In other cases, the court might change the divorce judgment so that the other party can comply with new terms. For example, a divorce judgment might state that parenting time exchanges should occur at 9:00 a.m. and that the parent ending parenting time should drive the child to the other parent’s house. If that parent is habitually late, for example dropping the child off at 11:00 a.m. on several occasions, the court might change the parenting time schedule to allow the parent exercising parenting time to pick up the child at 7:00 p.m. the night before. The court might also order that the offending parent forfeits their next parenting time when they’re late for parenting time exchanges.

Attorney fees

In many cases, the court will award the non-offending party attorney fees for the cost of enforcing the court judgment. That means they have to pay some or all of the cost of hiring an attorney to bring a court action in order to have the court judgment enforced. This can be a helpful way to make sure that you don’t bear the burden of the other party’s noncompliance with the court order.

Can my attorney tell the judge he doesn’t agree with the settlement?

There are rare situations where a lawyer might not agree to sign a settlement that you reach with another party independently. That lawyer could decide to show up in court to speak to the judge about any objections. Lawyers are allowed to do this. Here is what you need to know if your attorney decides to tell the judge that he or she does not agree with the settlement.

You Have a Legal Right to Do What You Want

The first thing to understand is that you have a legal right to do what you want. If you reached a settlement with a spouse or other party, then you have a right to present it to a judge or lawyer. The problem is that judges and lawyers do not always have to accept a settlement. An attorney is bound to represent you but can refuse to do so if you disregard any advice given. You are likely to get the settlement that you reached approved although it will have to be done without your current lawyer.

Letting Your Attorney Go

The most common course of action in this case is to let your lawyer go. You will have to fire the attorney. This has to be done through a written letter. You can send the letter through certified mail or present it to the attorney in person. You must also let the court know. If everything goes well, then your attorney will be relieved of the duty to represent you. It is important to note that firing the attorney might not stop him from showing up in court to speak.

What a Lawyer Might Say In Court

Your attorney is probably going to show up in court to voice a strong opposition to the settlement that you created. This could be for several reasons. The most common is just to have the objection to the settlement on the record. There could be payment issues due to the settlement. Your lawyer might also be genuinely concerned that the settlement is either not legally binding or not in your interests. Your lawyer does have the right to tell the judge he does not agree with the settlement.

How the Judge Could React

The judge handling your case is going to listen to your attorney’s objections, read the settlement and hear your side of the story. The judge will then review everything. Most judges will simply record the objection and grant the settlement. Some judges might not grant the settlement. This means you will have to negotiate something more acceptable with your spouse or the other parties. A judge might also order that your attorney continue representing you until an acceptable settlement is reached. Releasing a lawyer from a case is the decision of the court.

Possible Complications

You could face some legal and financial complications if your lawyer does speak out against your settlement in court. The first is that the lawyer could be forced to continue working with you. That can potentially cost you more money. If the judge will not accept the settlement, then you might have to modify the terms to something less favorable to yourself and the other parties.

Avoiding This Situation

The way to avoid this situation is through communication. You need to communicate regularly with your attorney about everything that is going on. If you and another party are starting to develop a settlement agreement independently, then let your lawyer know right away. Good communication can allow you to avoid a number of pitfalls during any legal proceedings.

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