Here are the answers to some of the most common questions we get about post-judgment issues in a divorce or paternity.
1. How do I change my placement and or custody arrangement?
a. If your original judgment was entered less than two years ago, you must have substantial evidence that the current custody order and/or placement order is either physically or emotionally harmful to the child(ren). If you have evidence supporting such harm, a Motion must be filed with the Court. The Court will then determine if the requested change is in the child(ren)’s best interest. This “two year rule” only applies to original custody and placement judgments.
b. If the original judgment was entered more than two years ago, you may seek a modification of custody and placement if there is evidence that there has been a substantial change of circumstances since entry of the last order (not necessarily the original order) and that you must show that modifying the judgment is in the child(ren)’s best interest. A Motion must be filed with the Court to address the proposed change.
c. Parents can agree at any time to modify custody and/or placement without having to return to Court. A Stipulation can be filed with the Court to make the agreed upon change part of the Court’s Orders.
2. What is the process for modifying a judgment regarding custody and/or placement?
A motion must be filed with the Court in the county of the original action. There will be an initial hearing in which the Court will determine if there is enough evidence to proceed. If it is determined that the motion should proceed, you and the other party will be ordered to participate in mediation. Mediation is almost always mandatory, except in cases of domestic violence. If you are able to reach an agreement in mediation, a Stipulation must be filed with the Court outlining the terms of the agreement.
In the event an agreement is not reached, the Court may order that a Guardian ad Litem be appointed to represent the best interests of the child(ren) and/or custody study be commenced, depending on the county of your case, to investigate the claims and make a recommendation regarding the proposed modification. A Guardian ad Litem is an attorney who is appointed to represent the best interest of the child(ren). He or she conducts an investigation and then makes a recommendation to the court.
3. How long will it take to resolve my motion for modification?
The answer to this question depends on whether the parties reach a Stipulation or must proceed to a trial or hearing. If the parties proceed to a trial, the process can likely take up to 10 months to a year, or even longer, depending on the unique facts or your case and the county in which your case is filed.
4. How do I lower/raise my child support or family support?
Child support and family support may be modified if there is a substantial change in financial circumstances. If you, as the payor, were to lose your job or have your wages substantially reduced, this may be considered a change in circumstances justifying a reduction in support. However, if the payor receives an increase in wages or obtained a higher paying job, then a motion may be filed by the other party requesting an increase in support. Please note that the Court can only modify support back to the date the other party received notice of the Motion to modify support, not the date of the change in income.
5. Do I have to provide my ex-spouse copies of my W-2 and or paycheck?
If you are paying or receiving support, then yes, you must provide documentation of your current income or risk being found in contempt of Court.
6. What do I do if I no longer feel that my divorce settlement is fair?
Once a divorce is finalized the only modifications that can be made are maintenance, child support, family support, placement and custody. The property division cannot be modified after the divorce is final. An exception to this rule would be if it is discovered that your spouse hid an asset which was not included in the settlement. Should that be the case, then the Court would consider reopening the Judgment of Divorce to address the division of the non-disclosed asset.
7. What should I do when the other party is violating the orders?
If one party fails to pay child or spousal support or refuses to honor the custody and placement (visitation) order, the law provides a remedy through a finding of contempt. Again, a Motion must be filed with the court. If the violation involves child or spousal support, the court can garnish wages or force the violator to pay in other ways. Sometimes, the violator is sentenced to a jail term as well. The court also has broad discretion to come up with other, more creative solutions to force the violator to comply with the terms of the decree. The court can also order the payment of attorneys fees or other penalties.
If you are being denied placement, you can file a Petition to Enforce Placement to force the other party to comply with the court order. The court again has broad discretion to enforce a placement schedule, including awarding make-up time, changing the schedule or awarding attorneys fees and costs.
The attorneys at Nelson & Davis, LLC can assist you with any of these problems and can further answer any questions you might have.