I receive this question on a fairly regular basis. What happens if we sign off on the uncontested divorce but my spouse decides to back out? The answer to this question typically depends on the timing of the issue. Every once and a while there is an uncontested divorce settlement agreement submitted to the Court for final judgment but before the judge puts their signature on the agreement, one party wishes to back out. More often than not these situations are dealt with by recalling the filing, a process which may or may not require a hearing. Judges seem reluctant to force parties in to settlements so having an uncontested divorce agreement recalled or struck prior to the judge’s signing is going to be easier in most cases than having the judgment set aside once it has been signed.
Once a judge has signed the judgment it is final, subject to the rights of appeal, which is beyond the scope of this article. This becomes a much more difficult document to have set aside once the judge signs the document and any time period before finality ordered by the court lapses. Since each case is different and each request to set aside is different, there is rarely a set of cases which will have definitively similar outcomes every time. The time in between finality and filing of a request to set aside matters, how unconscionable the agreement is matters, new evidence matters, and a litany of other considerations can sway the Court in one direction or another. One thing is for sure, it is not an easy task having signed, final judgments set aside and an experienced attorney will be of great value.
Most of the time the issue is not that the judgment needs to be set aside, but rather the ex needs to be forced to abide by the agreement. In this circumstance the most appropriate method is usually a contempt proceeding. Contempt proceedings are filed on the original divorce case and basically request the Court force the offending party to abide by the terms of the agreement. The Court has very powerful methods to enforce your uncontested divorce decree. The Court can place the offending party in jail (and frequently does), the Court can issue fines, the Court can make the offending party pay the filing party’s attorney’s fees, among other things.
There are also special ways for the Court to deal with violations of custody or visitation orders. A compensatory period of visitation, custody or third-party custody at a time convenient for the aggrieved party not less than the period of time denied, Participation by the violator in counseling to educate the violator about the importance of providing the child with a continuing and meaningful relationship with both parents, Assessment of a fine of up to five hundred dollars against the violator payable to the aggrieved party; Requiring the violator to post bond or security to ensure future compliance with the court’s access orders; and Ordering the violator to pay the cost of counseling to reestablish the parent-child relationship between the aggrieved party and the child.
Furthermore, a judge may consider violations of certain parts of uncontested divorce decrees in future modification proceedings. Typically it is not in the best interests of the child to be withheld from a parent and judges take this conduct very seriously. I have seen a person nearly lose their custody rights after withholding the child unreasonably from the other party.
The exact avenues to enforcing your uncontested divorce decree are impossible to forecast without an in depth conversation about the matter. But, an experienced family law attorney will be able to provide you with the most efficient route to fulfill your enforcement needs and then leverage the Court’s contempt powers to stop the violating of the uncontested divorce decree. If you have a decree that is not being followed then feel free to give the Brad Hill Law Office a call and we will gladly assist you.