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While much of a family law firm’s work is related to the divorce process itself, another substantial aspect of the practice is based upon post-judgment litigation. Post-judgment litigation may be necessary in a particular case for any of a number of reasons, and in fact, it’s quite common. As common as it is, however, the post-judgment litigation process can be quite complex. You will need to demonstrate that there has been a change in circumstances that would warrant a modification, or that you are attempting to enforce the prior agreement. In instances where a divorce settled and the parties signed a settlement agreement, the court will hold you to that agreement unless you can demonstrate a substantial change. The court will not give you a better deal than you previously negotiated.
Basis for post-judgment litigation
Many post-judgment litigations center around the enforcement of the prior agreement. If, for example, your settlement agreement provides that one party was to refinance the marital residence within a set period of time or else the house would be listed for sale, and the person did not take the appropriate actions, you may have grounds for seeking post-judgment litigation. If your former spouse refuses to take action, your only recourse would be to file a motion with the court in order to compel the sale of the home. The same holds true in any situation in which your former spouse fails to do something that they were obligated to do under the terms of the agreement, whether it be distributing funds from a bank account, dividing retirement accounts, or providing proof of life insurance.
Another common reason for post-judgment litigation is a change in circumstance. If you have experienced a change in circumstance that is substantial and permanent, the court may decide that you are entitled to a modification of your agreement. This may include a change in child support in the event that the parenting time schedule has changed, or if one party has lost their job and has been unable to find a similar one after an extended period of time. It may also be a situation where your child has experienced an emancipating event, such as they stopped attending college, and your former spouse will not agree to terminate child support for that child. Another common example of post-judgment litigation that would allow for a divorce settlement to be changed would be in the instance where Person A pays Person B open duration alimony and has retired. In this instance, if Party A has reached their good faith retirement age, they may make an application to the court to terminate their alimony obligation based on their retirement.
Consent Order versus Motion Practice
It’s not always necessary to file a motion in order to modify your agreement. If you and your former spouse can come to an agreement on whatever the issues may be, you can formalize the agreement in what’s known as a Consent Order. These orders are signed by the parties and then submitted to the court for a judge’s signature. The judge does not pass judgment on the contents of the Consent Order, just as they do not review the contents of your divorce agreements. The judge will, however, sign and file the Consent Order with the court. Once it is signed by the judge, it has the same legal effect as any orders issued by the judge and your divorce decree.
If you are experiencing post-judgment issues in your case, contact the attorneys of DeTorres & DeGeorge to schedule a consultation.
