Renegotiating with litigants who won’t obey their previous court-approved agreements

Posted Friday, March 22nd, 2013 by Gregory Forman
Filed under Contempt/Enforcement of Orders, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Folks who refuse to comply with their court-approved agreements but then ask you to renegotiate those agreements to make them more to their liking are akin to domestic abusers attempting to sweet talk their way back into the home.  Which makes the folks who agree to renegotiate agreements that the other side won’t obey…..abused.

Just this week I was asked by an attorney if my client would be willing to renegotiate a court-approved agreement the parties had entered six months ago to make it more to her client’s liking.  That agreement required her client to do one-and-only-one thing once a month: deliver the parties’ child to a designated drop off spot at the beginning of my client’s monthly visitation period and pick up the child from that same spot at the end of the period.  So far she was 0-for-5 in complying with the court order completely, sometimes refusing to meet at the drop off spot or to be there at the designated times.  For one of the five she failed to show up entirely.

I must have sounded like someone with a lawyer version Tourette’s syndrome as I repeatedly told this attorney, “tell your client to follow the court order.”  Had I not been wary of violating the civility oath, I might have sounded like someone with full-blown Tourette’s.  I’m sure I came across as brusque when I refused to hear the opposing party’s “reasonable” requests to alter the current agreement.  But experience has taught me to never renegotiate agreements with folks who won’t comply with their current agreements.  They’ll sweet talk you with promises of better behavior if they get their way but if the existence of contempt sanctions–one year in jail; a $1,500 fine; 300 hours of community service; or any combination thereof–won’t get them to obey a court order, there’s no reason to believe that giving in on a few concessions will engender compliance.

Such promises are really a form of hostage taking, basically telling the opposing party, “until I get my way I am going to do everything I can to blow up the agreement.”  More likely, my client would end up relinquishing some of the benefits he received from the current agreement to appease this mother into a new agreement and she still won’t follow the parts of the new agreement when she doesn’t like them.  All my client’s concession will have really accomplished is teaching mom that she can get her way through non-compliance while leaving my client with a less desirable visitation schedule.

Contempt–and sometimes incarceration–is the only way to remedy this thinking.  Jail does have a way of getting the attention of abusers and hostage takers.

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