Post-Judgment Enforcement and Modification Proceedings
After divorce proceedings have completed, issues may still arise that could present cause for concern. What do you do if your former spouse does not pay support after divorce proceedings are over, or if they violate your custody and visitation agreement, such as by refusing to let you see your child according to your court-ordered visitation schedule? Or say your circumstances change and the terms of your old agreement no longer work for you – what can you do, for example, if you become unable to afford your support payments? Whether you need help enforcing a divorce agreement, or if you need to modify its terms to accommodate changed circumstances, there are options available for post-judgment divorce proceedings through the courts.Post-Judgment Enforcement
A Judgment of Divorce is a legally binding document, whether its terms were largely determined by a Stipulation of Settlement (marital settlement agreement) or through a court order via a trial. Both spouses must comply with the terms of the divorce judgment (also known as a divorce decree).
Unfortunately, obtaining a divorce judgment does not necessarily guarantee that the terms of your divorce will be honored. And if an ex-spouse disregards one or more terms of a divorce judgment, chances are there won’t be consequences or a remedy unless the wronged spouse takes action. If peaceful attempts to resolve the violation fail, court intervention may be necessary to enforce divorce stipulation terms.What Can I Do If My Former Spouse Does Not Comply with the Terms of Our Divorce Agreement / Judgment?
There are many ways that an ex-spouse could violate the terms of a divorce judgment, but most commonly, post-judgment divorce proceedings arise due to the failure of a former spouse to comply with the following:
- Spousal Maintenance – e.g., My former spouse does not pay spousal support as agreed
- Property Distribution – e.g., My former spouse won’t surrender a car to me as ordered; my former spouse has yet to transfer the title of our marital home to me as ordered
- Child Support – e.g., My former spouse does not pay child support as ordered
- Child Visitation – e.g., My former spouse won’t let my child visit as ordered; my former spouse keeps my child for longer visits than allowed by our custody and visitation order
- Child Custody – e.g., My former spouse moved out of state with my child, disregarding our custody order
If your former spouse commits a violation of stipulation terms after divorce (i.e., does one of the above), it’s important that you don’t escalate matters, and that you’re careful not to do anything that would put you at risk of violating the judgment yourself. Instead, you can return to court to file for an enforcement order.How Do I Make My Former Spouse Comply with a Divorce Agreement / Judgment Through Legal Action?
Once a petition for enforcement has been filed and testimony is subsequently heard in court, it will be up to the court to decide how to handle the matter. If the matter involves financial issues (particularly nonpayment), the court can compel a former spouse to comply in various different ways, including through the garnishing of wages. If the former spouse has committed a violation of a custody arrangement, the court could choose to sanction them or even to modify the arrangement. If a former spouse is found to have willfully disregarded the terms of a judgment, the court could find them in contempt and impose serious legal consequences.How Do I Know Which Court to Go To?
Choosing which court to go to after divorce will depend in part on which court has jurisdiction to hear the case. The Supreme Court alone is capable of addressing certain matters, such as violations regarding equitable distribution or property settlement as decreed by the Judgment of Divorce. Other matters, particularly those pertaining to the children of the marriage, such as child custody and visitation and child support, can usually also be addressed in Family Court.
But when the two courts both have jurisdiction to address an issue (or multiple issues, as the case may be), the choice then may come down to personal preference. Both courts have advantages and disadvantages.
If there are multiple issues to address, New York State’s Supreme Court may be the best option, as it can address all the post-judgment divorce issues of a particular case at once, including matters pertaining to child custody or child support and enforcement petitions. Family Court, on the other hand, won’t address more than one issue of a case at a time, so if a former spouse may be in violation of terms regarding multiple matters (e.g., child support nonpayment and interference with a visitation schedule), each case will need to be handled separately. Discovery may also be limited in Family Court, but cases heard in Family Court may also take less time to resolve than in the Supreme Court.
If you’re looking to pursue enforcement of a divorce judgment, it’s in your best interest to work with an attorney experienced with family law to discuss your options and determine the best course of action – and to improve your chances at a favorable outcome.Modification Proceedings in New York
If circumstances have changed since a divorce was finalized, such that one or both parties may be struggling to comply with the terms of a divorce judgment, it may be necessary to change the divorce agreement to better accommodate the changed circumstances. Either party can file a petition to modify a divorce judgment, but certain conditions must be met in order for a court to award a modification. It’s not enough to indicate, for example, that you simply cannot pay support after divorce proceedings have concluded. The court must first have jurisdiction to hear the case, and there must be evidence of a substantial change in circumstances.Modification of Child Support, Child Custody, and Visitation
In addition to demonstrating a substantial change has taken place in circumstances, for modifications of a child support order entered after October 13, 2010, a parent may also show:
- It has been at least three years since the child support order was entered (or modified); or
- Either parent’s income has increased or decreased by at least 15% since the order was issued
Modifications of child custody can prove more complex, and more difficult, to achieve. The court is more likely to order a modification if the substantial change can be proven to have significantly impacted the effectiveness of the original custody arrangement.
If the former spouse challenges the request for modification of child support, child custody, or parenting time, the petitioning spouse will need to be prepared to make a persuasive case for why the modification is in the best interests of the child. This frequently involves working with an attorney to present the strongest case possible.Modification of Spousal Support
There are a variety of reasons why someone would feel a need to change terms of a divorce agreement in relation to spousal support (aka maintenance or alimony), but in order for a modification to be granted, a person must show a substantial change in circumstances. An example of a substantial change might be:
- If a paying spouse cannot pay support after divorce due to –
- Job loss
- An unexpected or sudden illness
- A reduction in pay
- If the recipient of spousal maintenance:
- Has become economically independent
- Is living with a new partner
A modification to spousal support may also be sought if a) three or more years have passed since the Judgment of Divorce was issued (or modified) or b) if either party’s income has increased or decreased by at least 15% since the order was issued.Your Key to a Successful Resolution
If the terms of your divorce judgment aren’t working for you or your family anymore, or if your former spouse is refusing to honor the terms of your divorce judgment, it’s important to address matters as soon as possible. At Rudyuk Law Firm, P.C., we understand how difficult it can be to have to return to court, and how important your case is to you – and we will ensure that all your legal needs are addressed with utmost care and consideration. Ksenia Rudyuk, principal attorney at Rudyuk Law Firm, experienced in all aspects of family law and fluent in Russian, will be by your side every step of the way, working with you to determine the best course of action for a successful resolution – to protect your best interests, to keep your children safe, to get you what deserve.