A divorce agreement can be enforced in a couple of different ways. First, an agreement, unless it has been merged with a final order, is a contract. If somebody has breached an agreement, the person who is harmed by that breach could proceed with a contract action to enforce the contract against the violating spouse.
More commonly, parties and their attorneys will ask the court to hold the violating party in contempt. The reason they are able to do that is because, in most if not all divorce cases, settlement agreements are incorporated into the final divorce order, thereby making the provisions of those agreements court orders, as well. If somebody violates the provisions and thereby the court order, the court has the ability to hold them in contempt for violating. These processes can often be incredibly complex, solidifying the need for an experienced Virginia divorce lawyer.
Being in Contempt
Being in contempt means an individual has violated a provision of a court order, and that the person has done so willfully. If somebody has violated a provision of the order, but the enforcing party cannot show it was willful, the person who has alleged to have breached the agreement will not be held in contempt. Essentially, contempt presents itself in two parts, the violation and the willfulness of the violation.
Preponderance of the evidence needs to be proved in order to demonstrate that a person was in contempt. The person who is attempting to get a finding of contempt must show by preponderance of the evidence that the alleged breaching party has violated the order and has done so willfully.
The repercussions of violating a divorce agreement depend on if an individual is in contempt. If a judge finds that a party is in contempt of court, there are a number of things that can be done as a remedy. The person can be fined or possibly put in jail by the court for violating the order. The court also has broad discretion in terms of crafting a remedy that will force the violating party to correct the breach, including forcing somebody to pay the amount that is overdue, potentially add interest to that, put together a repayment plan plan, and various other remedies that the court can come up with to penalize the breach of the order.
Civil vs. Criminal Contempt
Even though there can be jail time at risk for somebody who is being held in contempt, these cases are still civil contempt. That means that the court in assigning jail time, if it chooses to do so, has to create some sort of remedy that the violating party can do to purge themselves of the contempt finding.
For example, in a child support case, in which non-paying parents can frequently be incarcerated for failing to comply with an order, the judge has the ability with civil contempt to put the offending party in jail. The judge will often say a person can purge oneself of this contempt and therefore be released from jail if that person pays a certain lump sum payment that the judge will testify. Even though jail time is involved, it is still a civil contempt case.
The most effective defense that can be employed by a lawyer is to attack the allegation and evidence of willfulness. For example, in a case where support may not have been paid, a person defending someone on the contempt action is going to try to present evidence of why the non-payment was not willful. If the party lost their job or if the party had somebody repossess their car or some other sort of financial hardships, the attorney defending that person is going to try to show the court that their client did not pay but it was out of their control. That is the most respective way to defend against a contempt case.
Benefits of an Attorney
The process, as with other things relating to divorce, can a bit complicated, so a Virginia post-divorce enforcement attorney can help a party navigate the system in terms of the right things to do and to have a contempt action properly filed against the other party. Additionally, when there is a violation of an order and perhaps the violation is not completely blatant and intentional, a lawyer can assist in looking at what possible settlement might be made that would get relief for the person who has suffered from the violation while avoiding costly litigation.