When trying to resolve your Rhode Island Divorce the idea is to reach a settlement that both parties are in agreement with. There are two forms of settlement agreements namely, oral and written.
When the agreement is oral, the terms of the Marital Settlement Agreement are confirmed before the family court judge with the court stenographer taking down the details of the agreement and the parties testifying to the terms of their agreement.
When the parties divorce agreement is committed to writing, the terms agreed upon husband and wife are usually set forth in a written agreement that is signed by each party under oath before a notary public.
While there is more information regarding the presentation of divorce settlement agreements to the court, the scope of this article is limited to one particular issue.
The issue is simply this, "Is there a difference between having language in your Marital Settlement Agreement versus having that same language included in your Family Court Decision or Final Divorce Decree?"Yes. The major difference has to do with enforcement.
Language contained solely in a Marital Settlement Agreement is enforced in the Rhode Island Family Court by filing a Motion / Petition to Enforce (the Marital Settlement Agreement). The relief requested by a Motion / Petition to Enforce may be simply an Order from the Court requiring one party to comply with the Marital Settlement Agreement or may include damages, attorney's fees, costs and/or expenses depending upon the terms the parties agreed to in the Marital Settlement Agreement.
Language that is contained in an Order, Decision, Judgment or Decree is a mandate or requirement of the Rhode Island Family Court Judge and must be obeyed. A Motion / Petition to Enforce may still be filed in order to seek the enforcement of the Judge's mandate.
However, this is not the traditional method of enforcement. The typical method of enforcement is by use of a Motion to Adjudge in Contempt (Contempt Motion). A contempt motion asserts that the family court judge has previously ordered that a person must perform a particular action or refrain from taking a particular action and has violated what the judge has ordered.
The consequences of a Motion / Petition to Enforce normally result in an Order by the court requiring compliance with the Marital Settlement Agreement between the parties.
The consequences of Motion to Adjudge in Contempt can be far more serious and may require not only the payment of attorneys' fees, expenses, costs and sanctions but may also result in imprisonment in the Adult Correctional Institution for the parties' failure to comply with the Order of the Court.It is helpful to keep in mind that language in a Marital Settlement Agreement is a requirement of the contract between the husband and wife, whereas language in an Order, Decision, Judgment or Decree is a requirement of the court.
In another article regarding Rhode Island Divorce hearings I will address the danger of how a Marital Settlement Agreement might accidentally become a mandate of the court.
Authored By: Christopher A. Pearsall, EsquireRhode Island's Only Full-Time Divorce* Lawyer and Divorce Coach
(c) Copyright 2010 Christopher A. Pearsall, Esquire (All Rights Reserved)
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