I find that the day a divorce is final, both men and women take a huge exhale, a sigh of relief as they feel like a huge burden is lifted off of them. No more legal bills, no more fighting, no more worrying about how it’s going to turn out. The deal is on the table. Right? Wrong! Did you know there are more couples currently in post litigation than litigation for the initial divorce? You know why? Because people walk away from their divorce with a divorce agreement (a decree) and then lo and behold, they don’t follow it. So, you find yourself going back to court to see what a judge has to say about him or her breaking the rules. This is a guest post by divorce attorney, Mark Schondorf about the potential consequences of not paying child support and not upholding other divorce decree obligations.
The Divorce Agreement and Breaking the Rules, by Attorney, Mark Schondorf
It’s important to remember that a divorce settlement is not just an agreement, it’s a court order. Likewise, during a divorce a judge might make a bunch of different orders (sometimes agreed by the attorneys) on things like temporary child support, temporary maintenance, or having to produce work records.
If you don’t follow the judge’s orders, you are essentially telling the court that you don’t care about its authority and that you think you can do whatever you want. Think about it. “Pay child support? Forget that!” “Get life insurance so my kids can go to college if I kick the bucket? Yeah, right.” “Show you my bank statements? Make me.”
If you act this way, the law looks at you like you are insulting Lady Justice. The technical term is “contempt of court.” There are a few different types of contempt:
1. “Direct” contempt. This is where something occurs in the courtroom. Here’s a pretty good example of direct contempt: https://www.youtube.com/watch?v=Fe2BfdlzwgI. See? Don’t make the judge mad. They have power and can cause you a lot of grief.
2. “Indirect” contempt. This is something that occurs outside the courtroom and is most common in the divorce context. Basically, you are violating a court order, but you don’t have the brass to do it in front of the judge’s face. You’re going behind his or her back. “So what if I don’t contribute to pay camp expenses? The judge ain’t here!” But if the court finds out, you’ll get in trouble. And if you keep doing it, you can find yourself in jail.
If you messed up, and you want another chance, the court will usually give you a chance to fix it. For example, getting back child support paid up or putting your house on the market, per the order. You’ve really got to do a lot to really make a judge truly angry, but you only get so many chances.
What happens if you’re not such a bad person, and you can’t follow the court’s orders because of something out of your control?
Let’s say your divorce decree says you have to refinance your ex-husband off of the mortgage, but you can’t qualify for a mortgage because your house has no equity or your job doesn’t pay you enough? You can offer that as a defense, and tell the court that you didn’t break the law on purpose, and sometimes these things happen. The court may go easy on you and say that you did not willfully violate the court’s order, and hence no contempt. (Whew!) But, you could get a strict judge and end up facing a fine or other consequences.
If you find yourself in a situation where you can’t uphold part of the settlement agreement because of finances or other valid reasons, the best thing to do is contact your attorney so that he or she can take steps to amend the agreement with your ex’s attorney.
The law says that if you’re not following a court’s order on purpose and without a good reason, your ex spouse can get his or her attorney’s fees from you on top of whatever you might owe, or need to do. This seems like a great idea for hauling your former spouse into court. He’ll have to pay my fees! HAHA! Well, not really.
While some judges follow the law to the letter (and then some), other judges will reduce the fees to something more “reasonable” compared to the violation. And remember, just because the judge didn’t make him or her pay all your lawyer fees, doesn’t mean you don’t have to pay them. Lastly, if your ex can’t pay child support, he won’t have 10 grand for your attorneys fees, so you’ll end up without the money, anyhow.
Thanks Mark! I have to put in my two cents about attorney’s fees. Having personally experienced post divorce litigation, I would tell anyone NOT to expect to be awarded attorney’s fees. It almost seems like a pipe dream to me, and my attorney told me she has only seen one case in hundreds where the person was awarded attorney’s fees.
My point is, if you think you are going to get the last laugh, think again. I don’t believe that judges award attorney’s fees very often, which I believe is very very wrong. I think if the system was different, and it was commonplace to make the person who isn’t adhering to the divorce decree pay fees, it would set an example and people would see that if they break the rules, they will pay. It’s almost gotten to be a joke, where men and women break the agreement because they know that their ex doesn’t want to spend the money to go to court, so he or she will just let them get away with it. So so so sad and very wrong!! It’s frustrating.
My advice would be, if your ex isn’t following the agreement, try to be rational and talk to him or her and ask why. I know it’s hard, and that you might have to swallow your pride, but isn’t that worth saving thousands of dollars and so much time that would otherwise be spent in court?! If your ex is completely irrational, then you really don’t have a choice. Sometimes you have to spend money (on attorneys and in court) to send the message to your ex that if he/she doesn’t follow the rules, here’s what happens.
Mark Schondorf is a Northfield, Illinois based divorce attorney who has been in practice for several years. He’s a graduate of Georgetown University and Loyola University law school. Schondorf also attended Tel Aviv University in Tel Aviv, Israel where his studies included Arab-Israeli relations, psychology, and marketing.