Frank and Sandy’s contentious divorce was finalized with a marriage settlement agreement (MSA; also known as a divorce settlement agreement) that seemed to placate everyone. So, when Frank began violating the conditions of the MSA, Sandy was surprised and frustrated. How can she make sure her ex lives up to his part of the deal?
The MSA is a binding, legal contract
“A marital separation agreement is treated in Illinois as a contract,” says attorney Stuart Shiffman of FeldmanWasser a full-service law firm in Springfield, Illinois. A retired trial judge who presided over divorce cases all over the state, Shiffman explains, “Before the divorce is finalized, the agreement must be presented to a judge and approved.”
When Frank refused to pay for some of the agreed-upon expenses of their minor child, he did so intentionally. “The party who violates the agreement would be deemed in violation of the order and subject to what the law calls civil contempt of court,” says Shiffman.
Putting the MSA to work
Elysa Greenblatt, the owner of Greenblatt Law, a matrimonial and family law firm in New York City, says that most MSAs have “default clauses” that provide guidance about what to do when an ex doesn’t follow the agreement. “Usually, you start by sending a letter detailing the violation,” she advises. Oftentimes, the ex will then comply with the agreement, wanting to avoid legal action and expenses.
But if the letter does not yield the desired results, it’s time to hire an attorney. “Ideally, the parties can settle their differences without going to court,” says Greenblatt, “but often if there is a violation, we end up needing to file post-judgment enforcement proceedings.”
Remedies to hold the ex accountable
Lisa Marie Vari, founder of a family law firm, has practiced as a divorce attorney in Pennsylvania and Florida for more than 25 years. She points out that many attorneys include terms in the MSA that hold the spouse who violates the agreement responsible for paying the other spouse’s legal fees incurred to enforce the agreement.
“Family court judges have wide discretion in fashioning a remedy for the aggrieved former spouse,” says Vari. “Remedies are designed to make the person ‘whole’ after suffering a loss.” The remedy ultimately seeks to require compliance with the terms of the MSA. If the terms cannot be enforced as written, then some other remedy to financially compensate the victim may be sought.
“If the failure to comply is considered willful, there might be a fine, jail, and an order to pay attorneys’ fees,” Shiffman says. “In most instances, however, the party that is violation of the contract complies after the lawyers get involved and the threats go back and forth.” So, get your attorney involved.