A marital settlement agreement is a document that lists the terms of a divorce. It is usually incorporated into the court's formal order or decree terminating the divorce. Therefore, a marital settlement agreement carries the weight of a court order and can be enforced by an action for contempt of court. The exact procedures for bringing the action will vary by state.
- Skill level:
Initiate proceedings. Start the court process by filing the appropriate document with the appropriate court--typically the one that ordered your divorce. In some states this will be a form petition or affidavit available at the courthouse, but in others you may have to generate your own document or attach a supplementing affidavit containing the elements described in Step 2. Consult with an attorney or your local clerk of court for more details.
Plead facts amounting to violation. To effectively state a case for contempt of court for violation of a marital settlement agreement, you'll have to establish three elements in the document initiating the proceedings. First you must identify by its date and title the court order being violated. Second, you must show the violator had knowledge of the order by providing proof of service of the order--usually a required part of terminating the marriage. Third you must at least allege that the former spouse knowingly violated the order.
File with clerk and serve process. The documents initiating the proceeding must be filed with the clerk of the court, the filing fee must be paid and a copy of the document(s) must be served on the other party. The service requirements vary by state, but usually service can be effectuated by a private process server, the county sheriff or any non-interested third party older than the age of 18.
Attend a hearing. The court will set a hearing for the matter at which you must present evidence establishing a wilful breach of the court order. You and the other party may appear through legal counsel or appear for yourself. Evidence presented at the hearing will be subject to the standard civil rules of evidence in the state.
Tips and warnings
- Violation of a marriage settlement agreement is civil contempt and is typically remedied by a new court order requiring the breaching party to conform to the original order. In some cases it may be possible for the court to award money to compensate for a breach. Imprisonment is a possible remedy for criminal contempt, but is usually not an issue in enforcing marriage settlement agreements.
- A court may not choose to find contempt for violation of a term of divorce not clearly stated in the marriage settlement agreement. If the agreement is ambiguous, enforcement may depend on filing a civil lawsuit alleging breach of contract. Consulting an attorney is highly recommended.
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