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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 10-10-2005, 10:54 AM
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Default Changing a Legal Agreement

What do you do if the rules in a seperation agreement are not being followed? For example, holiday time with my child is clearly stated but yet every time it comes to the 'time' the other party changes it!
Thank you.
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Old 10-10-2005, 12:56 PM
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Hi Jenn,

Is it just the holidays times when there are problems or are there other problems? How serious is it - are you missing entire holidays with the children or just an hour or two?
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Old 10-10-2005, 01:08 PM
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Hi Jenn,

I have gone through this and, unfortunately I had to file a costly Variance of agreement because the details of the original were so wishy-washy that there was no way to enforce it. Plus, as far as I know, the only way to ensure that the agreement is enforced is to take it back to court.
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Old 10-10-2005, 07:47 PM
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Thanks Jeff. It is usually a problem when I have the 'extended' holiday time. There always seems to be some sort of issue/discrepencacy/change of order to suit the other party. I have been more then accomodating, but it seems like the agreement is just not either (1) being followed by the other party or (2) just being ignored all together. Having this agreement was supposed to cut down on the bickering and argueing by having everything pretty much 'spelled out'..but it just doesn't seem to be working.
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Old 10-10-2005, 11:01 PM
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Jenn, I don't really know all the details, but I think it's a bit of a personal decision as to what to do. If it is just an hour or two of time missed, you may just want to put up with it. Or you could try to get make up time for the time you missed. If there's a breach of the agreement, you could file a contempt motion, but they're hard to succeed at.

As nitrocellulose points out, often the agreement is not specific enough to enforce through the courts and you may need to get it changed so that it is. If there's a solution that would resolve this sort of continual problem - for instance, alternating rather than sharing holidays - you may with to go to court to get the agreement changed anyhow.

In making your decision, you'd also need to consider the motivation of your ex in doing this - is it control, revenge, etc, or simply a lack of consideration.

You'd also need to consider legal fees. Even for a little thing like this, it can get quite expensive.
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Old 10-11-2005, 11:24 PM
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Re: Jeff

How refreshing it is to hear a family law attorney tell it like it is and with an eye on saving the client some money!

For those of you who are just at the beginning of your divorce and with little or no experience with divorce lawyers - the above is rare!

We should applaud - loudly - an attorney like this!

Kudos to you Jeff - You're a stand-up guy!

Dan
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Old 10-12-2005, 12:16 AM
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Kudos to Jeff for sure!!!

Hey Jeff,
I was once told if you are going to take a contempt forward you should wait for the party to do it three times. Document it and the judges look more favourably on it if you have documented it at least three times...if you take it to court only after once...the other party can just say it was a misunderstanding and not a pattern.
I once helped a friend do a contempt order and it didn't go into court but the lawyers told us that if it happens again. Document and wait for the third time to do anything...has more weight!
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Old 10-12-2005, 11:45 PM
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I don’t know how to do an emoticon for blush! Thanks for your kind words. They mean a lot to me.
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Old 10-12-2005, 11:56 PM
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Nikitaforce, I’m not sure that there’s any "3 times" rule or even rule of thumb. I’ve written an article on contempt here:
http://www.ottawadivorce.com/contempt.htm


The bottom line is that it can be really hard to succeed at contempt motions because there is a very high standard of proof ("beyond a reasonable doubt"). So, for instance if you’re denied access, all the other parent needs to do is come up with some excuse, and that’s enough. That may be where the "3 times" is coming from - if you’re denied access 3 times in a row, the judge may simply not believe the other parent’s excuses.

Yes, documentation is important, especially in custody disputes! Keep a contemporaneous journal. If your custody case was a high conflict one, continue the journal (in brief) even once its over, as the chances are you’ll be back in court in a few years.
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