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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. 

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.

Click on the titles below to toggle on and off pertinent information.

Emotions

In a domestic dispute, negative emotions such as hostility, anger, and revenge can needlessly delay a resolution and increase the cost. Perspective and objectivity, on the other hand, can promote a conclusion and reduce the cost.

Many factors may be involved in the breakup of your marriage, and you may feel indignation, anger and resentment toward your spouse. You may want to punish your spouse by making the process difficult and time-consuming. This type of thinking usually results in a no-win situation for everyone concerned.

... read more >>>

Reconciliation

Often, a potential client visits an attorney to discuss divorce, although they have not yet made the decision to take the big step. First, they want to know their options. Attorneys typically encourage them to explore alternatives, and often suggest how to protect themselves and meet their needs, short of divorce.

If your attorney raises the issue of reconciliation, he is not questioning or judging your decision. But, it is clarifying and confirming that you know your options, and that you want a divorce.

Your Spouse's Suggestions

The mediator’s role is to move the parties beyond personality clashes and historic grievances. Only then, can the mediator help you improve communication so any future dealings can take place without repeating the difficulties of the past. Mediation is a useful tool because it adds a new dimension to the negotiations. Because the mediator’s purpose is to help guide you to find solutions that you can both agree to, he/she does not have the power to decide your case, or in any other way, act as a judge nor does he/she have a fixed result in mind to urge you toward.

... read more >>>

Your Will

As you begin the divorce process, the first order of business is to review your will. If you do not have one, get one immediately. Succession laws may conflict with your wishes.

You may choose to consult David Hillier, of this law firm, regarding your will, as well as any financial concerns and considerations you may have.

Length of Time

Generally speaking, it is impossible to predict exactly how long the case will take. After the case is under way, and your attorney understands the issues, he will be better able to gauge the duration. How long it will take depends on the following factors:

  • The number and complexity of contested issues;
  • The attitudes of each of the parties, their attorneys, and their inclination to settle;

read more >>>

What is Mediation?

Mediation is a process in which two or more people involved in a dispute come together voluntarily to try to develop a solution to their problem with the help of a neutral third person (or persons), called the mediator. Unlike a judge or an arbitrator, the mediator does not take sides or make decisions. The mediator, usually trained in conflict resolution, is there to help the disputants evaluate their goals and options in order to formulate their own solution. To achieve the fairest results possible, you both take an active part in your divorce and turn what could be a battle for control into a search for mutually beneficial solutions.

Does Mediation Work?

Mediation can take place over a series of sessions. But, more often than not, it is scheduled for a continuous amount of time to keep the negotiations going. Sessions are generally held in the privacy of the mediator’s office or an attorney’s office, and begin with all involved signing an agreement that the negotiations will be kept confidential. At the end of a successful mediation, the mediator will prepare a Memorandum or writing expressing the agreements of the parties, at least on the issues which were resolved. Any formal agreement will be drafted by your or your spouse’s lawyer.

What to Expect from Your Mediator

The mediator’s role is to move the parties beyond personality clashes and historic grievances. Only then, can the mediator help you improve communication so any future dealings can take place without repeating the difficulties of the past. Mediation is a useful tool because it adds a new dimension to the negotiations. Because the mediator’s purpose is to help guide you to find solutions that you can both agree to, he/she does not have the power to decide your case, or in any other way, act as a judge nor does he/she have a fixed result in mind to urge you toward.

... read more >>>

What are the Benefits of Mediation?

Mediators can increase the likelihood of a negotiated settlement by bringing the skills, creativity, and influence of trained, impartial third parties to bear on the problem. Perhaps more importantly, frequently mediation can save time and money.

Mediation keeps your options open and reduces issues of conflict. Although most who undertake mediation have a successful conclusion, some do not. If mediation doesn’t work, you can still sue and go to court or engage in arbitration.

... read more >>>

Counseling

Domestic disputes are emotionally charged. Clients are encouraged to seek counseling before and during the process. Counseling can help clients to work through their pain, accept the marriage’s end, learn coping skills, and pick up the pieces of their lives and go forward.

Don’t wait for your spouse to agree to participate. Individual counseling can help. Often, children and parents attend counseling together to alleviate the effects of a divorce or custody dispute on the children, and to help the family heal emotionally.

... read more >>>

Practical Matters

Litigation often spawns more litigation. To determine whether certain issues are worth litigating, you must weigh the price you will pay with your time, emotions, and money, against the anticipated outcome and its benefit to you. Again, your attorney will advise you on these matters.

Dating prior to the final divorce: Don’t, unless your attorney has specifically advised you that it is okay.

... read more >>>

Attorney Camaraderie

Attorneys who specialize in Divorce and Family Law will probably try many cases against each other over the years. They will attend the same professional events and, may even work on committees together. Camaraderie develops naturally over the years. Just because your attorney and your spouse’s attorney exchange pleasantries, share a joke, or have lunch together, does not mean that they are being disloyal to their clients. Your attorney is professionally committed to the best result for you given the facts of your case and the law. Being rude, hostile, or mean to opposing counsel does nothing to further your case and generally harms your case rather than helping.

Is Your Attorney Tough Enough?

All too often, the client has the attitude that a lawyer who is a “fighter” is a lawyer who refuses to cooperate with opposing counsel, makes demands and gets instant results, goes to court at the drop of a hat, and plays Perry Mason in court. This notion is sadly misguided.

The time to fight may be during tough negotiations or in court. But, not cooperating on routine matters accomplishes only greatly increased attorney fees because it requires both attorneys to do everything the hard way. Cooperation by the attorneys, as well as the parties, particularly during the discovery phase, is always in the best interest of the client.

Social Media

Social Media is a new facet of communication today. We understand that everyone participates in social media to some degree. When you are involved in divorce proceedings or any type of litigation for that matter, a good general practice is to avoid discussing any element of your case, or your spouse, in any social media forum. All social media is discoverable, and it never goes away. If you are considering divorce or litigation, be very careful what you say in online forums, including email attached to social media sites like Facebook, LinkedIn, and MySpace.

Costs

Just as it is impossible to predict exactly how long your case will take, it is difficult to realistically estimate the total cost of your litigation, even when your attorney knows the issues that will be contested and the strength of the parties’ feelings. If you and/or your spouse have completely lost trust in one another, want complete discovery on all issues, and desire to argue many issues to the bitter end, the process will be long, drawn-out and expensive.   read more >>>

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