Many divorcing couples can’t make a clean break with their ex-spouse due to shared children, financial entanglements, or both. The marriage has ended but your relationship continues. Unless the parties can work out their disagreements post-judgment, whether by direct negotiations or ADR (mediation, arbitration, collaborative law), they may be headed for court.

Prior to your divorce decree, you had to weigh what was really important to you, what you were willing to give and take, to avoid a trial. If one party violates the Final Judgment of Divorce or the Settlement Agreement incorporated into it, or substantially changed circumstances make enforcement impractical or unfair, the balancing act begins again. Just as during the divorce process without an agreement among the parties on the issue it could be resolved through a trial.

Time Wounds all Heels

You or your ex-spouse may want the Final Judgment or Settlement Agreement to be modified due to special circumstances or want the court’s help to have the existing one enforced, as follows:

• One of you wants to move a long distance, perhaps out of state. This can impact child custody or parenting time.
• An ex obliged to pay some type of support fails to do so.
• The ex with primary custody refuses to allow children to spend time with the other parent, in violation of the divorce documents.
• An ex may have successfully hidden assets prior to the divorce but it’s discovered afterward.
• Your ex may unexpectedly retire, suffer a disability, or lose a job. This could impact alimony and child support.
• You may have enjoyed a significant improvement in your financial status, won the lottery, earned an unexpected and large bonus, all potentially affecting spousal or child support.
• An ex’s religious beliefs may change. S/he may become more devout or believe in a different religion and want children to be brought up in that religion.
• A remarriage, or being in a relationship that’s close to marriage, can impact child custody, parenting, and child support.

Enforcement

If your ex has violated a term of the divorce documents, and unless the two of you can resolve the issue yourselves or with the assistance of legal counsel, a mediator, or an arbitrator, you may need to file an enforcement motion to force your ex into compliance. In response, s/he may try to have the divorce documents modified or enforced differently.

If you need to enforce the divorce documents, here are some steps you should take to make it easier.

Document the failure to comply.

You can communicate, calmly and professionally, with your ex-spouse without getting an attorney involved. Document the breach and remind your ex of his or her obligations and the fact he or she is required to comply. If you talk to him or her, take notes of what you said, the response, the time, date, location and names of any witnesses. You could also send a letter by certified mail (maintaining proof of actual delivery), and by regular mail (if the certified comes back undelivered and the regular mail does not come back, then service is deemed valid), and keep a copy.

With your ex, in person, don’t get overly emotional, swear or yell. Things can spiral out of control and violence could occur. Don’t try to publicly shame, embarrass, or humiliate the person when talking about him or her to others or on social media. If you believe your ex has reached the point where violence may happen, contact your attorney and talk about obtaining an order of protection.

Make it clear to your ex the two of you will be in court if the problem isn’t resolved.

He or she may not comply unless there is a real, credible, imminent possibility that the cost in time, energy, and money that comes with a court battle is about to eventuate. This letter can be sent by your attorney. You may also be able to obtain an award of attorney’s fees and costs from the other side if you’re successful. Violations of a court order are one of the top reasons that judges issue sanctions against the violating party. This may change your ex’s calculation of the costs and benefits of ignoring your Settlement Agreement or other divorce documents.

File a motion.

If ignoring the problem isn’t making it better and the two of you can’t resolve the problem by yourselves or even with the assistance of legal counsel, then start down the litigation trail. This may add additional urgency to discussions to resolve your dispute. Or the reality may be your ex has no interest in seriously discussing the issue and it will take a judge to bring the dispute to a close. That would result in another court order with which your ex may or may not comply.

Modification

If the two of you came to an agreement when the divorce was finalized, there should be provisions in it stating how it can be modified. As long as the two of you agree, one of you isn’t under the other‘s duress, and the two of you are mentally competent, the Agreement should be modified with that change legally enforceable. Court orders involving your divorce can also be modified.

When a child custody order is made, the judge is supposed to prioritize the best interests of the child. Once such an order is issued, it won’t be modified unless the judge (or another judge) feels there’s credible evidence of a “substantial change in circumstances” and the proposed change is also in the best interests of your children.

A parent wanting to modify a child support order carries the burden of proving changed circumstances that merit the modifications. These changes must be substantial. If that’s been shown, the other parent needs to provide the court with current financial information. The judge will review all the available facts, rule on the request, and issue an order that takes into consideration the same factors that were considered when the initial child support order or parenting time arrangements were made.

An ex-spouse can seek a change to a spousal support order if there’s enough evidence of substantially changed circumstances, including the party receiving it has re-married (or is in a sufficiently marriage-like relationship) or his or her financial situation has greatly improved. If the moving party wants to reduce the money he or she is paying due to personal and substantial downwardly changed circumstances, then s/he can show that unemployment, disability, retirement, or a sharp increase in the cost of living makes the previously entered order no longer equitable. That party would need to show such changes substantially impaired his or her ability to self-support, let along support another.

CONCLUSION

Enforcement and modification of divorce documents are very important.  You really need to “measure twice and cut once”.  If you self-represented during the divorce, or did not like the advocacy or writing skills of your first lawyer, you should seriously consider seeking legal assistance from an experienced matrimonial specialist who has your own and the dependent children’s best interests at heart.  If you have any questions or concerns about enforcing or modifying agreements or court orders related to your divorce, contact our office for a near-term appointment.  We will listen to your facts, discuss the law, and figure out the best ways to achieve social and economic justice for you.  We look forward to hearing from you.