Enforcing the Terms of Your Separation Agreement
A divorce decree is more than a document declaring the end of a marriage. It is a court order. Some ex-spouses forget this. They drag their feet or refuse to follow court orders regarding property division, parenting time, or financial support. If your ex fits this description, then you know the frustration. The good news is, you have legal options to fight back. Here’s what you need to know to enforce your separation agreement when your ex has not followed through or abided by the court’s orders.
Bottom Line:
A Separation Agreement is a court order once signed and accepted by the Court. This agreement also has the same binding effect as if the Judge ordered it after hearing, rather than by agreement of the parties. A violation of a court order allows for remedies to the wronged party and penalties for the party who violated the order.
Topics of Discussion:
What is a Separation Agreement?
A Separation Agreement is a contract between two spouses who are living apart and getting a divorce. It outlines the following:
- the division of marital property and debt,
- the amount and frequency of spousal support and obligations of each party to the other even after the divorce is finalized (ie: life insurance policies).
- other duties and responsibilities related to the divorce.
Once both parties sign the separation agreement and the court approves it, each spouse must abide by its conditions. It becomes an Order of the court once it is adopted by the Judge.
Judges typically approve this agreement so long as its terms are fair and equitable to both parties. There are times when a judge can reject the agreement. If a judge finds the agreement “unconscionable” — grossly favoring one spouse — they may alter it or ultimately reject it and ask the parties to go back to the drawing board. — Colorado Revised Statutes 14-10-112
How Does a Separation Agreement Differ from a Divorce Decree?
A divorce decree is a document issued by the court. The decree is the Court essentially saying that the parties are legally divorced and now single. The decree is important for insurance, tax filings, and the closing of accounts. It marks a change in a client’s relationship status.
The Separation Agreement is a contract between the parties whereby they agree to perform certain actions and divide certain marital property. This has to be approved by the Court and is filed asking the Court’s permission to grant it. There are times when a Judge has rejected a grossly unfavorable agreement and that usually occurs when one party is unrepresented by an attorney.
What About Legal Separation?
The difference between divorce and legal separation is that, at the end of the separation process, the couple is still legally married. Oftentimes a case is filed as a legal separation, but morphs inevitably into a divorce proceeding. If one party asks to convert the legal separation (no matter who filed it) into a divorce proceeding, there is no legal basis for the other party to object. Sometimes a party who has special insurance coverage through a spouse prefers to file a legal separation instead of a divorce so they can maintain that coverage but also have the ability to be legally separated from their spouse. Parties who are legally separated can enter into a separation agreement.
What is a Violation of a Separation Agreement?
When one party ignores the terms of the separation agreement, they can be in violation of the agreement. Once the Court approves the Separation Agreement as an Order, the parties are bound to its terms. The wronged party has the duty to prove to the Court the violation and that it was a willful action by the party who committed the violation.
A violation of the divorce settlement agreement is more than an inconvenience. If your ex stops complying, and you tolerate it long enough, it can lead to serious financial hardship.
Examples of a breach include:
Failure to Make Maintenance Payments
After divorce, it can be difficult to manage finances even when your ex’s payments arrive on time. When maintenance payments are late, inconsistent, or stop arriving altogether, it can affect everything: your quality of life, your credit score, and your ability to provide basic needs for yourself and your children..
Failing to Transfer Property
Dividing debts and assets can be a tedious, time-consuming process. That process may continue even after the court issues the divorce decree. In these situations, a reluctant ex-spouse might drag their feet even more, believing the court is no longer paying close attention. You could wind up without some of the property or assets rightfully belonging to you and any interest that could accrue during that time frame.
Failing to Close Accounts and Divide Debt
When parties separate their lives, they must also separate their finances. When one party does not comply with closing accounts or credit cards, that can negatively affect their ex-spouses financial situation or even their credit score. Making sure that your ex complies with the Court’s order is imperative.
A Recent Example from Our Files
Usually, in a divorce, both parties just want to be done, so they comply with the separation agreement in order to move on with their lives..
Recently, we had a client whose ex-husband owed her $150,000 as an equalization payment as part of their separation agreement. However, that payment was contingent upon the sale of real estate, and that sale did not happen as planned. Unfortunately, the client did not have the money at the time that it was required pursuant to the parties’ settlement agreement.
However, with the right course of action and filings, we were able to obtain the money for our client. We filed a Motion for a Contempt Citation against (her ex-husband) to pursue the payment if he continued to be non-compliant. Just the filing of the Motion was enough for him to start moving things forward and pay our client shortly thereafter.
Enforcing a Settlement Agreement
You don’t have the power by yourself to enforce the terms of your separation agreement. But the court does. The question is, how long will your ex refuse to comply before you decide to get the court involved?
The court can enforce the settlement agreement terms in several ways, depending on your situation. The most common approach is to file a Motion for Contempt Citation.
Motion for Contempt of Court
A motion for contempt citation is a document that asks the court to find that the other party willfully violated a court order. Your attorney can file this Motion if your ex violated a term of the separation agreement in your case.
There are two kinds of contempt a court may consider, according to the Colorado Rules of Civil Procedure (C.R.C.P) Rule 107.
Remedial contempt asks the court to remedy the damage caused by the breaching party. For example, if your ex-spouse failed to pay spousal support for several months, if they are found in contempt, a remedy would be to order the party to pay the support instantly.
Punitive contempt seeks to punish the offending party. The standard of proof for this type of contempt is higher than remedial contempt. Oftentimes, filing under both types is common practice. The court has the authority to:
- levy fines and attorney fees,
- order a remedy as stated above,
- order jail time where a party has thumbed their nose at the court’s orders.
Your Options Before Going to Court
Sometimes you may not have to get the court involved. Maybe all your ex needs is a reminder to follow through on their legal obligations. Discuss the issue with your lawyer. He or she may send your ex a letter explaining the legal consequences of violating a separation agreement.
If that’s not enough to get them back in line, start gathering evidence of your ex’s noncompliance. Keep a record of all communications with your ex, including:
- emails
- text messages
- voicemails
- notes taken after phone calls or face-to-face discussions
Also, print account statements showing any missed payments. Keep a journal or calendar of missed parenting time or canceled visitations.
All of these sources can support your case in court.
When to Take Them to Court
Clients typically want enforce the separation agreement immediately after a violation. However, when you go to court and file a motion for a contempt citation, the contempt citation is only issued for items unpaid and mentioned in the original filing.
So if you’re stating that someone hasn’t paid for two months, you’re going to court for just those two months.
My advice to clients is to wait to go to court when there are higher stakes and when there is more money owed to the client. However, it’s a catch-22. The client needs the money, but the Court will only enforce the items that are in the Motion which is served on the other party. I always suggest that clients wait until at least a few months of non-payment have occurred before filing a Motion.
Enforcing a Property Division Order
A property division order details how marital property will be divided in a divorce. It specifies:
- which party will receive what assets,
- how much each party will collect from the proceeds of the sale of marital property or home, and
- how much each party is responsible for paying on what marital debts.
Getting some exes to abide by the terms of the property settlement agreement can be particularly vexing. One party can act like they will comply at the time the agreement is signed, but have no intention of complying out of spite for their ex-spouse.
Examples can include …
- Delaying signing of the quit claim deed to real property owed to you.
- Claiming they can’t find the valuable family heirlooms you expected to get back.
- Moving a needy relative or friend into the marital house they were supposed to sell and share proceeds from.
- Not paying out a portion of marital bank accounts owed to you
If you’re dealing with an ex who won’t comply with property division orders, you have recourse. The first step is choosing the most effective legal mechanism for solving the problem.
Post-Decree Property Dispute Remedies
If your ex refuses to sign necessary documents, the courts can turn to Colorado’s Rules of Civil Procedure, Rule 70. Rule 70 outlines a legal process that results in the court signing the documents in place of the breaching ex.
Another remedy could be filing a motion for contempt of court. A contempt charge brings an array of punitive and remedial sanctions, including fines, wage garnishment, and possibly even jail time.
Enforcing the Distribution of Financial Accounts
Here, any potential remedy depends on the nature of the account.
For example, dividing a 401K account will need the entry of a Qualified Domestic Relations Order, or QRDO. This order designates part of one spouse’s retirement benefits to the other after divorce or legal separation.
If the spouse with the 401K refuses to cooperate, the other party can still request that the Qualified Domestic Relations Order be entered by a means of other Rules of Civil Procedure.
The same may apply to some pensions. However, the court might have more difficulty muscling its way into a bank or pension account. Instead, the court can force compliance by garnishing wages and other proceeds.
Asking the Court to hold the non-compliant spouse in contempt may be the only viable solution. Of course, each case is different. Discussing your options with an experienced attorney can help with determining the best way to proceed.
CASE RESULT: Recovered a Share of a Retirement Account for Client
R&H Associate and Family Law Attorney Katy Kinney recently helped a client get their ex-spouse to comply with the divorce settlement.
Despite having been divorced for some time, our client’s ex-spouse still had not transferred our client’s share of a retirement account, which exceeded $60,000.
Katy successfully negotiated the transfer of the account at mediation, which saved our client the expense and time of going to court. And since the other party’s noncompliance necessitated the need for mediation, Katy was able to obtain payment from the ex-spouse and payment of our client’s attorney’s fees.
Enforcing a Separation Agreement Across State Lines
Colorado’s authority to enforce its court orders does not stop at the state line. It is possible for a party to enforce a lack of compliance against the other party when it pertains to a Separation Agreement or any court order.
Hire an Experienced Family Law Attorney
If you are considering a divorce or would like to discuss your rights in separating from your current partner, it’s important to seek legal advice. Our Family Law Team is here to listen and can guide you to a fair outcome. Call 303-688-0944 to begin your case assessment.