2

Admittedly due to my own negligence a rider made it into my final divorce agreement that I'm trying to fight. My SO is not allowed in the presence of my children. I agreed to that in the temporary agreement ONLY and it carried over because I didn't speak up.

We have an enforcement hearing today and for the following reasons I'm going to argue that it is unreasonable.

  1. There is no safety concern for the children.
  2. We both live in the same town and can end up at the same store.
  3. Our kids are roughly the same age and therefore could end up at the same park/school.
  4. The kids are with me 12/14 nights.

Is it a possible outcome that the court declines to enforce the motion? or am pretty much going to have to take it now and wait for the modification hearing (still waiting to be scheduled)?

5

Usually, an attack on the validity or prudence of the underlying order is not a defense to court action to enforce it. Usually, the only exception would be when it was impossible, or practically impossible, to perform the court order for some reason.

You could seek to modify the order, but that would be prospective in effect only and usually isn't granted unless there has been a change in circumstances since the original order was entered.

You could also bring a motion to set aside judgment (usually this has to be done within six months of entry of an order) on the grounds that this provision was included only due to mistake or irregularities in the process or excusable neglect. But, that only would have only prospective effect.

3

The court can modify an agreement, but a lot of times it wont unless their is a significant change in circumstances, because people would want to change things all the time and the court would run out of time.

It's really up to the judge, but the best outcome is that you and your former spouse work together.

  • currently before the court is a "motion to enforce" not a "motion to modify"...can they still modify it in that case? I'd love to have worked this out...but it didn't pan out that way – user25568 May 8 at 16:23
  • They have the ability to, but really it's just up to the judge. – Putvi May 8 at 16:26

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