Post Judgment Modifications & Order Enforcement
It is not uncommon for financial circumstances to change following a divorce, and there are divorced people on both ends of the spectrum who are seeking modifications – paying spouses who can no longer afford their support payments and nonpaying spouses in need of additional support.
A Marital Settlement Agreement is a legally binding written contract submitted by divorcing spouses that covers issues such as child custody and visitation agreements, child support, alimony, and the division of martial assets and liabilities. Once a Marital Settlement Agreement has been executed, in order to enforce the terms and conditions of the agreement, you must submit a formal request or motion to the court, showing how your ex-spouse has not been holding up his/her end of the bargain. Using the aid of an attorney can help you through this complicated process.
Common reasons for the need of the court to enforce the agreement include:
- failure to pay child and/or spousal support,
- failure to maintain life insurance policies,
- refusal of payment for child’s education,
- failure to pay a mortgage payment.
Other issues may arise after the divorce is entered that may require modification of the agreement, such as emancipation of children, modification or termination of alimony (sometimes due to changes in employment, remarriage or cohabitation), modification of custody or child support.
When it comes to child support modification, there is a legal standard that must be met to prove one parent is experiencing “changed circumstances.” These changes must be (1) unanticipated, (2) substantial, and (3) permanent. If one parent is seeking to modify a child support order, that parent has the burden of proving to the court that they meet the legal definition of “changed circumstances.” If they are successful in doing so, then the modification request can proceed. The next step is for the other parent to provide the court with current financial information, which the judge will review and issue a ruling based on the child’s needs and each parent’s economic circumstances, including income, assets, debts and liabilities, and earning ability, among other factors.
There are some common situations that demonstrate changed circumstances, including:
- An increase or decrease in the income of either parent.
- An increase or decrease in cost of living.
- The payee remarries or begins living with another adult.
- The payee becomes employed or gets a substantial raise in pay.
- A parent or the child suffers a serious illness or disability.
For those who are currently unable to meet their child or spousal support obligations, it is vitally important to take steps right away to have their support order changed. Any support payments that are missed – called “arrears” – in most cases can not be vacated by the Court retroactively. Support payments are also not dischargeable if you file bankruptcy. It is important to follow the proper procedures to avoid facing a contempt order for violating the terms of the original court order. Too often we see people who get into trouble because they thought they had an agreement worked out with an ex-spouse, only to find themselves facing charges of non-payment and contempt of court.
If you have any questions regarding enforcement or modification of your settlement agreement or Court Order, call (973) 813-8100 for a free consultation.