Generally, when there are post-divorce disputes over a couple’s settlement agreement, there are a few paths upon which a party may proceed. Most people jump to litigation. It is important, however, to consider whether you can negotiate a resolution instead. It is usually faster and cheaper to stay out of court especially if the dispute is likely to reoccur, such as with those involving spousal or child support or parenting time.
Litigation Options
In rare circumstances, you may be able to challenge or set aside your divorce settlement agreement if you have appropriate grounds. However, a court will generally enforce your agreement even if it is unfair unless you can demonstrate fraud, duress, undue influence or unconscionability. To challenge the agreement, you must commence a new action (separate from the divorce action) to vacate or set aside the agreement. Note that if you are successful, you will have to re-litigate or renegotiate the terms of your divorce settlement from scratch.
Another option is to enforce the settlement agreement if your ex-spouse isn’t complying with the terms. You can sue for breach of your divorce settlement agreement to which you can file a post-judgment enforcement motion under the divorce action against your ex-spouse. This type of action is a continuation of the original divorce proceeding so no summons and complaints are needed, making it less costly. Alternatively, you can commence a new action to which a summons and complaint would need to be filed and served. The latter option would be necessary if neither of you lived in the jurisdiction in which the divorce judgment was rendered.
If you are the non-complying party, you have two options. First, you can file a post-judgment modification action prior to or in response to your ex-spouse’s enforcement action seeking to change the terms of the agreement. Ideally, you shouldn’t deliberately breach the agreement to force your ex to negotiate. It’s best to seek modification first but that may not be the case if you are struggling to comply with the terms and your ex seeks enforcement. Alternatively, you can file a declaratory judgment action which can raise the issue before the court without triggering an enforcement proceeding although your ex could cross-move for enforcement in that event.
Renegotiation
Often, there are legitimate reasons for the dispute. A party’s or a child’s circumstances may have changed but the other side doesn’t want to revise the agreement. The agreement may also have been poorly drafted resulting in questions about the proper interpretation of the terms. Situations like this can be difficult to address with litigation because the circumstances giving rise to the dispute may reoccur leading to more litigation. Even if they can be resolved by the court, it is likely to be time-consuming and expensive.
A better option is to renegotiate the problem terms of the agreement. That process may be aided by a parenting coordinator if the dispute involves children, a mediator and/or an experienced attorney for any issue that arises between you and your ex.
While sometimes it is impossible to find a compromise, whenever possible, negotiation is the most efficient way to resolve post-divorce disputes from both a cost and enforcement perspective as parties who agree on the modification are more likely to adhere to the revision.
If you need assistance with a post-judgment action, contact us to discuss how we can help you with your matter.
