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Difference between revisions of "Resolving Family Law Problems out of Court"
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Resolving Family Law Problems out of Court (view source)
Revision as of 04:26, 14 May 2013
, 04:26, 14 May 2013→Wait, I've changed my mind!
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===After the agreement has been formalized=== | ===After the agreement has been formalized=== | ||
If you have a change of heart after a separation agreement has been signed, you can attempt to negotiate an amendment to the terms of the agreement. | If you have a change of heart after a separation agreement has been signed, you can attempt to negotiate an amendment to the terms of the agreement. An amendment is another agreement, put into writing and executed just like the original separation agreement, and is usually described as an "amending agreement" or an "amendment agreement." However, if the other side isn't prepared to change the agreement, you'll have little choice except to go to court and ask the judge to make an order different than the terms of the agreement. Be warned: this may be difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious and unexpected change in circumstances since the agreement was executed. You can't ask the court to make an order different from the agreement just because you've decided you don't like it. There must be an awfully good reason why the court should do anything different than what you agreed to. | ||
If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which <span class="noglossary">will</span> be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You <span class="noglossary">will</span> have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached. | If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which <span class="noglossary">will</span> be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You <span class="noglossary">will</span> have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached. | ||
Amending separation agreements and asking the court to set them aside are discussed in more detail in the chapter [[Family Law Agreements]], in the section [[Changing Family Law Agreements]]. Varying orders is discussed in more detail in the chapter [[Resolving Family Law Problems in Court]], in the section [[Changing Final Orders in Family Matters]]. | |||
It's important to know that if you disagree with an order or a separation agreement and just decide not to comply with the order or agreement, the other side can go to court to enforce the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as binding agreements in the same way that separation agreements are enforceable. | |||
The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]] | The enforcement of orders is discussed in more detail in the chapter [[Resolving Family Law Matters in Court]], in the section [[Enforcing Orders in Family Matters]]. The enforcement of agreements is discussed in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]]. | ||
===Before the agreement has been formalized=== | ===Before the agreement has been formalized=== | ||
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You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about: | You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about: | ||
* Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether? | *Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether? | ||
* Is it worth the additional legal fees it <span class="noglossary">will</span> cost to go back into the negotiation process and to draft a new agreement? | *Is it worth the additional legal fees it <span class="noglossary">will</span> cost to go back into the negotiation process and to draft a new agreement? | ||
* Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on? | *Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on? | ||
* Is it worth the risk that the other side <span class="noglossary">will</span> start a court action to enforce the agreement? Is it worth the legal fees it <span class="noglossary">will</span> cost to defend an action to enforce the agreement? | *Is it worth the risk that the other side <span class="noglossary">will</span> start a court action to enforce the agreement? Is it worth the legal fees it <span class="noglossary">will</span> cost to defend an action to enforce the agreement? | ||
Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you both gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side <span class="noglossary">will</span> want to re-open other issues. | Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement. The two of you both gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side <span class="noglossary">will</span> want to re-open other issues. | ||
