CSP Team Note: This is final post in a three-part series written by Rebecca Wofford, a family law attorney and partner at Wofford Law, PLCC to help our readers navigate the divorce process. Read part one here and part two here.
Most clients are ready for the divorce process to be over and, when they have settled all of their issues, they breathe a sigh of relief. However, there can be issues that arise after the divorce is finalized — especially for parents. Here are some general answers to questions that arise for parents after divorce.
For a collaborative case or when parents settle their divorce issues amicably, a lawyer will most often prepare both a separation agreement and a consent order for custody and support. The separation agreement contains the terms for equitable distribution, i.e. the division of marital property, and spousal support. This agreement is a contract between the parties and is not generally filed with the court unless someone breaches the agreement or does not abide by its terms. Hopefully, you and your spouse will divide all of your property exactly how the agreement says you will do this and the supporting spouse will pay spousal support in accordance with the terms of the agreement. If one party does not follow through or violates the agreement, the other side would have a claim for breach of contract he or she may file with the court. This agreement is non-modifiable meaning once you and your spouse have signed it in front of a notary, it is binding and won’t be changed without the consent of both parties.
For issues related to children, generally speaking, we advise clients to have those terms included in a consent order that the court will approve. This document is filed with the court and is modifiable. Unlike property and spousal support, for children, our law does not expect parents to be able to ascertain everything that is in the children’s best interests for every year between the time the order is entered and when they turn 18. A child’s needs change as he grows.
What if my children’s needs have changed?
Upon a showing of a substantial change of circumstances, a court may modify a consent order for child custody and/or child support. The goal for the court is to modify the order to meet the best interests of the child under the current circumstances. For example, you and your spouse may have entered a consent order that included that the children would spend time with each of you on a rotating schedule for 2 days, then 3 days, then 3 days and then 2 days. Now, your children are entering middle school and their long day at school plus their extracurriculars are making it very difficult for either parent to spend quality time with them. Perhaps seeing mom and dad every two or three days was important when they were in elementary school, but now it feels like you are just continually in transition and believe they can go a little longer in between transitions. Maybe you decide to have a rotating schedule so that every 7 days they transition between houses. Neither of these examples fit all families. Some families decide that one house should be home base during the week while the other parent sees the children on weekends. You should decide what works best for your family and know that, if this changes for you and your children, you can ask the court to modify the order or you and your ex-spouse can agree to modify the consent order.
What if my ex-spouse does not pay child support?
Your ex-spouse has violated the consent order and you can file a motion for contempt with the court. The court takes a violation of a consent order very seriously and there can be civil or criminal consequences. If your ex-spouse has lost his or her job or has had a reduction in income, then he or she should ask the court to modify the custody order rather than choosing not to follow its terms.
What if my ex-spouse stops allowing me my full parenting time?
This is also a violation of the consent order and you can file a motion for contempt with the court. If your ex-spouse has a good reason for not allowing you your full parenting time, i.e. you are engaging in behaviors that are harmful to the children, then again the remedy should be to ask the court to modify the consent order.
What if we just cannot agree on what the terms of the consent order mean?
This happens. Lawyers try and write agreements and orders that are clear but there are times when either the situation that has arisen is not spelled out in the order or when the terms of the order are ambiguous. For example, orders often allow for each parent have “reasonable” communication with their children when they are having parenting time with the other parent. What does reasonable communication mean? Can one parent stay on the phone with the children during the entire time they are with the other parent? No, but how much time on the phone is o.k.? What about when the children go to middle school and have their own phones?
For scenarios like this, you may request the court to modify the order so it has more precise terms. Make sure to review your order. It could include a clause that requires the parties to go to mediation or arbitration to settle any dispute over meaning of the terms.
What if we are just having trouble co-parenting?
This happens, too. You could meet for coffee and really listen, empathize with one another and make a plan. You could seek help from a professional — either a therapist or a lawyer. In Charlotte, we have therapists and lawyers who are parent coordinators and, by statute, a parent coordinator can be appointed by the court to meet with parents and help them understand the terms of their agreement or order and help them navigate co-parenting.
Note: These blog posts have not covered every aspect of law for every legal situation arising from divorce nor were they intended to do so. The goal of the series was to provide general information about some topics that arise for parents going through divorce. If you are going through the divorce process or planning on obtaining a divorce, you should consult with a lawyer.
Rebecca is also founder of The Lunch Project – see her most recent Smarty Mom profile here and her first profile here – she was also 2014 Smarty Mom of the Year!). For more blog posts by this author or to visit her firm’s website, visit www.woffordfamilylaw.org.