MODIFICATION & ENFORCEMENT ACTIONS

Modifications

Divorce is meant to be final. But, some issues can be subject to future modification. Generally speaking, Equitable Distribution (property division) is final and, unless agreed to by the parties, is not subject to any future modifications by the court. However, child custody, child support and spousal support matters may be modified at a later date by a court even without the consent of both parties.  Determining what issues might be subject to this involuntary modification can be a complex inquiry that requires the advice of a knowledgeable attorney. Modification may depend on whether the issue was resolved by an agreement, or court order as well as other relevant factors.

What if both parties agree to a modification? 

Even if you and your former spouse are able to agree about the changes that need to take place, it is still important that you take the appropriate legal steps necessary to formally amend any prior agreements or court orders. If you agree to alter the terms of an agreement, or order, a new agreement must be prepared and signed in the same formality as the original agreement. Failure to follow the necessary legal requirements to formally modify your order or agreement, could mean that your order or agreement is not altered in the eyes of the court and could lead to future costly issues.   

What is needed for a modification? 

Issues initially determined, were done so based on the facts and circumstances of your case that existed at that time. If a support or custody order is subject to modification by the court, the party requesting the modification must usually establish that there has been a “substantial change in circumstances” since the entry of the prior order. Substantial change in circumstance includes things like:

  • loss or acquisition of employment
  • substantial increase or decrease in earnings or earning potential
  • health and disability issues
  • A custodial parent’s desire to relocate outside of the area 
  • Drug use or other concerning behaviors that affect the safety of the child
  • A child not doing well, emotionally, physically or educationally 

In the case of modification of custody or alimony, the relocation or remarriage of one parent may have a substantial impact on the other, justifying modification of the existing court orders. Not all changes will justify a “substantial change” in circumstances to trigger a modification. Generally, things which may negatively affect a child, are cause for modification for custody and support and should be discussed with an experienced attorney.   

In the case of modification of child support, it is possible to change a support order if no substantial change has occurred. However, this only applies if a period of at least 3 years has elapsed, and there is a 15% difference in the new calculated support amount since the entry of the order. 

If you have experienced a substantial change in circumstances, for better or worse, it is important to seek the advice of an experienced family law attorney to provide leadership and guidance through the process of your modification. The family law attorneys at GHMA | LAW  are experienced, knowledgeable and diligent attorneys and can help you through a modification. 

Modification & Enforcement Articles

MODIFICATION & ENFORCEMENT ACTIONS

Enforcement

Even in the best situations, agreements are made by people with the best of intentions, however, sometimes people have to be forced into compliance with those agreements or any orders the court has issued. 

How do I enforce an Agreement? 

All agreements including, prenuptial agreements, postnuptial agreements, separation agreements are legally binding contracts and can be enforced by the Court. If one party decides not to follow the terms of an agreement then the court can enforce the agreement through a breach of contract action.  Generally, well drafted agreements have clauses that provide for the breaching party to pay the other’s attorney fees and costs for enforcement actions. 

How is a Court Order enforced?

If a party is not following the terms of a court order, an action for contempt can be brought against that party.  The party not following the order would be required to appear in court and answer to the court as to why they are not following the order.  If you are faced with a contempt action, you may have some defenses available, such as not having the ability to comply with the order. A knowledgeable attorney can advocate on your behalf to ensure that you are not wrongly found in contempt. 

What happens when a party is non-compliant? 

Failing to follow a court order or agreement can have serious consequences. When one party is non-compliant in an on-going and repetitive fashion, and especially when that non-compliance creates turmoil, the North Carolina courts will take the necessary steps to ensure compliance is met. 

The court can impose various penalties, such as fines for attorney fees, jail time or other consequences.  In many cases, enforcement actions can be more trying than modifications or even an actual divorce. It has been our experience that nothing is more frustrating to our clients than to have to rehash the issues that have previously been resolved. We understand the emotional impact enforcement can have. The family law and divorce attorneys at GHMA | LAW are tough advocates. You deserve sound, professional, effective counsel for your enforcement matter. We provide exactly that.

Patrick McCroskey and Janet Amburgey are both board-certified specialists in family law and have extensive experience in negotiating modifications and advocating for clients in trial, if necessary.  They understand hardship that a modification or enforcement can have on families and can provide compassionate and effective counsel to help you achieve a fair outcome. To ensure that your interests are protected call us for a consultation at 828-258-3368. 

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MODIFICATION & ENFORCEMENT ACTIONS

Modifications

Divorce is meant to be final. But, some issues can be subject to future modification. Generally speaking, Equitable Distribution (property division) is final and, unless agreed to by the parties, is not subject to any future modifications by the court. However, child custody, child support and spousal support matters may be modified at a later date by a court even without the consent of both parties.  Determining what issues might be subject to this involuntary modification can be a complex inquiry that requires the advice of a knowledgeable attorney. Modification may depend on whether the issue was resolved by an agreement, or court order as well as other relevant factors.

What if both parties agree to a modification? 

Even if you and your former spouse are able to agree about the changes that need to take place, it is still important that you take the appropriate legal steps necessary to formally amend any prior agreements or court orders. If you agree to alter the terms of an agreement, or order, a new agreement must be prepared and signed in the same formality as the original agreement. Failure to follow the necessary legal requirements to formally modify your order or agreement, could mean that your order or agreement is not altered in the eyes of the court and could lead to future costly issues.   

What is needed for a modification? 

Issues initially determined, were done so based on the facts and circumstances of your case that existed at that time. If a support or custody order is subject to modification by the court, the party requesting the modification must usually establish that there has been a “substantial change in circumstances” since the entry of the prior order. Substantial change in circumstance includes things like:

  • loss or acquisition of employment
  • substantial increase or decrease in earnings or earning potential
  • health and disability issues
  • A custodial parent’s desire to relocate outside of the area 
  • Drug use or other concerning behaviors that affect the safety of the child
  • A child not doing well, emotionally, physically or educationally 

In the case of modification of custody or alimony, the relocation or remarriage of one parent may have a substantial impact on the other, justifying modification of the existing court orders. Not all changes will justify a “substantial change” in circumstances to trigger a modification. Generally, things which may negatively affect a child, are cause for modification for custody and support and should be discussed with an experienced attorney.   

In the case of modification of child support, it is possible to change a support order if no substantial change has occurred. However, this only applies if a period of at least 3 years has elapsed, and there is a 15% difference in the new calculated support amount since the entry of the order. 

If you have experienced a substantial change in circumstances, for better or worse, it is important to seek the advice of an experienced family law attorney to provide leadership and guidance through the process of your modification. The family law attorneys at GHMA | LAW  are experienced, knowledgeable and diligent attorneys and can help you through a modification. 

Enforcement

Even in the best situations, agreements are made by people with the best of intentions, however, sometimes people have to be forced into compliance with those agreements or any orders the court has issued. 

How do I enforce an Agreement? 

All agreements including, prenuptial agreements, postnuptial agreements, separation agreements are legally binding contracts and can be enforced by the Court. If one party decides not to follow the terms of an agreement then the court can enforce the agreement through a breach of contract action.  Generally, well drafted agreements have clauses that provide for the breaching party to pay the other’s attorney fees and costs for enforcement actions. 

How is a Court Order enforced?

If a party is not following the terms of a court order, an action for contempt can be brought against that party.  The party not following the order would be required to appear in court and answer to the court as to why they are not following the order.  If you are faced with a contempt action, you may have some defenses available, such as not having the ability to comply with the order. A knowledgeable attorney can advocate on your behalf to ensure that you are not wrongly found in contempt. 

What happens when a party is non-compliant? 

Failing to follow a court order or agreement can have serious consequences. When one party is non-compliant in an on-going and repetitive fashion, and especially when that non-compliance creates turmoil, the North Carolina courts will take the necessary steps to ensure compliance is met. 

The court can impose various penalties, such as fines for attorney fees, jail time or other consequences.  In many cases, enforcement actions can be more trying than modifications or even an actual divorce. It has been our experience that nothing is more frustrating to our clients than to have to rehash the issues that have previously been resolved. We understand the emotional impact enforcement can have. The family law and divorce attorneys at GHMA | LAW are tough advocates. You deserve sound, professional, effective counsel for your enforcement matter. We provide exactly that.

Patrick McCroskey and Janet Amburgey are both board-certified specialists in family law and have extensive experience in negotiating modifications and advocating for clients in trial, if necessary.  They understand hardship that a modification or enforcement can have on families and can provide compassionate and effective counsel to help you achieve a fair outcome. To ensure that your interests are protected call us for a consultation at 828-258-3368. 

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Modification & Enforcement Articles

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Common Questions & Concerns

We will do everything possible to structure your case so that you may obtain the best legal result. Punishing your spouse or winning an all-out, no holds-barred victory, however, is an unrealistic and unattainable goal. Your attorney's job is to represent your best interests, and to achieve the best resolution for you. His job is not to serve as your avenger. He cannot give you retribution for the sins of your spouse. If you enter this process expecting revenge and retribution, you will be sorely disappointed and unhappy with your attorney, yourself, and the outcome of your case, no matter how favorable that outcome may be to you. Before beginning the attorney-client relationship, you should make every effort to put your priorities in order, and realize that there are some things the legal system cannot provide.

Most people share the same fears, questions, and beliefs about divorce. The following are some of the most common of these fears, questions and beliefs.

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