When you settle a dispute but the other side refuses to do what they are supposed to do, you need to do something to get them to abide by your agreement. Some agreements are easier to enforce than others. Before the court can enforce an agreement for you, you first must initiate a legal action and have an order or judgment from the court.
Not All Agreements Are the Same
People often settle their differences between themselves without going to court, and when the terms are put in writing, the document is called a settlement agreement. When someone won't do what they are supposed to do, however, the only way you can make them do so is by getting a court order. The problem is that a court cannot act without enforcement power, and that power doesn’t kick in until you file a lawsuit. Only then will you receive an order or court judgment. If you’ve already gone to court, you may already have one. If not, it’s going to take a few more steps to enforce your agreement and will likely start with filing a lawsuit.
Judge Signed Your Agreement
If you drafted your agreement after filing a lawsuit or family law petition and it was submitted to the court for approval, you may already have an order or judgment. One way to know is to look at your court papers. If there is language along the lines of “So Ordered” and a judge’s signature, any violation of the document's terms may also be a violation of a court order. If so, you can go immediately to the next step, which is to file a motion to enforce or, in especially egregious cases, a motion for contempt of court. The court may do a number of things, including ordering compliance, issuing fines, sending someone to counseling or, in severe cases, jail time.
Judge Didn’t Sign Your Agreement
When a lawsuit is filed, some states allow the parties to put specific language into their agreement that turns the settlement agreement itself into a type of judgment. This allows the parties to avoid going to trial. If a problem arises, an aggrieved party requests a judgment and files a motion to enforce, but not a motion for contempt of court since there is no court order. While this approach is helpful, it won’t work unless you use the exact language specified by your state.
You Haven’t Been to Court Yet
When there is no prior lawsuit and all you have is your settlement agreement, the most common way to enforce the agreement is by filing a breach of contract lawsuit. In family law cases, a written agreement entered into with the other parent has no binding effect on the court. This means you must file a family law petition and request that the court make child custody, visitation and support orders. When you ask for these orders, however, the court will probably consider the agreement you entered into with the other parent.
An attorney for more than 20 years, Cara O'Neill currently practices in the areas of civil litigation, family law and bankruptcy. She also served as an Administrative Law Judge and taught undergraduate and graduate courses in the areas of employment law, business law and criminal law for a well-known university. Attending the University of the Pacific, McGeorge School of Law, she graduated a National member of the Order of the Barristers - an honor society recognizing excellence in courtroom advocacy. She is currently licensed in the state of California.