The unique fact about California family law is that parties to the divorce can go back to the court to modify past judgments. Once a court has concluded a family law case, circumstances can change, requiring the couple to change their divorce terms. If events in your case have changed materially to the point that the previous court’s decision is no longer in line with you and your partner’s needs and interests, a modification could be necessary.
If this is your current situation, you might benefit from the help and guidance of an experienced divorce attorney. Contact the San Diego Divorce Attorney today and let us walk you through the legal process.
Understanding Post Judgment Enforcement and Modifications in California Family Law Cases
Once a judgment is passed in most cases, whether criminal or civil, it means the end of the case. The plaintiff and defendant are not allowed by law to go back to court over the same matter. The only choice the law gives an aggrieved party is to appeal the case. However, it is a different matter when it comes to family law. It is only in a family court that parties are allowed to modify and enforce previous rulings.
After a family law case’s conclusion, it is common for situations to change for either party. A considerable change in the circumstances could necessitate a modification of a previous judgment if the changes affect one or both parties’ needs. Areas of a divorce case involved in this modification are child visitation, child custody, and child and spousal support. The party applying for amendments will be required by the court to prove the material changes in circumstances that have necessitated a need for modification.
Public policies favor the final judgment, especially when it comes to child and spousal support. The law is not meant to give both parties the idea that court decisions can be challenged at any time, as this makes it hard for them to stay away from the legal process. That is why there are strict requirements before a petition for modification is accepted by the court. The applicant must meet a changed circumstances burden, which may include but not limited to:
- Change in employment
- An illness by one party, or the child
- A change in a child’s education payments
- If one or both parties relocate
- A change in the needs of the child
Note that a change in employment, which could decrease a partner’s ability to pay child/spousal support or increase the need for a partner’s support, is subject to scrutiny by the court. Unfortunately, some partners will be intentionally unemployed or under-employed to pay less support or to receive financial aid. The law does not permit this, and if a judge is confident that a partner earns below their ability, the judge could impute their income. The imputed figure will be used to calculate their ability to pay or need for support. An imputed income will encourage the party to look for better employment and earn to their full potential.
California family law also allows parties to go back to the court to enforce a previous judgment. It could happen if one party fails to follow court orders or even pay debts. In that case, the court could take further action against the party. For example, if after divorce, one party was required to give up the family residence so that the other party can move in with the children. If the party refuses to do so, then the court can intervene.
Grounds for Post Judgment Modification
Circumstances are always bound to change, which is what causes many people to divorce. The circumstances will not cease to change after the divorce. That is why California family law allows for modification of divorce terms. However, post-judgment modifications are not as easy to achieve as one may assume. It is possible to amend several features of a divorce ruling, but applying for the modification is usually limited. Engaging the services of a divorce attorney could help achieve the intended purpose.
The following are areas of a divorce judgment that are subject to modification:
Child Custody/Visitation
An agreement between a divorcing couple regarding child support and visitation is made based on the parent’s current situation. If the parents cannot agree, the court listens to their arguments and makes a ruling. The court’s decision is based on the child’s best interests. However, the room is left for change, and parents are allowed to freely make new agreements at any time if their circumstances change. But the law requires both parents to be at least on a similar page regarding the modification for the court to grant the request.
When parents agree, it becomes easy for them to parent after divorce. The law also requires modification to reflect the child’s best interests. Amendments sought for one or both partners’ suitability will not be granted if the court determines that they will disadvantage the child. Generally, the court will grant a parent’s request to modify a child custody/visitation aspect of a divorce decree if it believes that the changes will be for the child/children’s best interest.
The parent wishing to modify the custody/visitation order must make an official Request for Order to officially request the court for a modification. Note that an arrangement between the partners could speed the process. However, the court will need evidence of the changed circumstances to grant the request in its absence.
Child Support
Child support is an aspect of the divorce decree subject to modification. After divorce, both parents are required by law to be fully involved in their child/children’s life. Involvement, in this case, means physical, emotional, and also financial. One parent may be required to pay child support to enable the other parent to cater to the child’s financial needs. A statutory formula is used in California to calculate child support. However, situations can change along the way, prompting one or both partners to pursue child support order modification.
Here again, the court will require demonstrable evidence of the changed circumstances to grant the parent(s)’ request. Some of the changes that could justify a need to amend the child support order include:
- Change in the income for one or both partners
- Loss of job for one parent, mainly the one paying child support
- Incarceration of either of the two parents, though exceptions exist in some instances
- The existence of another child in either of the parent’s other relationship
- Modification in the child custody order
- A change in the monetary needs, education, and health care of the child
- Change in the reasons used by the court in the calculation of child support
Alimony or Spousal Support
There are several reasons why a court grants one partner alimony after divorce. It gives the partner receiving support the financial ability to maintain their former marital standards of living. Again, the court may order the partner with a higher earning capacity to sponsor their partner’s training and education to enhance the receiving partner’s earning power.
Calculations for spousal support are based on alimony factors in California. Thus, any request to amend the spousal support order must show consideration to these factors. Some of these factors include the financial ability of the paying partner, the financial needs of both partners, their marriage duration, and the receiving partner’s age and health.
The paying partner’s retirement is one of the justifiable grounds for modification of the spousal support order. However, this isn’t the only reason. Therefore, if you feel that you have a justifiable reason to petition the court to modify the alimony order on your divorce decree, get in touch with an experienced divorce attorney.
Type of Evidence Needed
In all modification cases mentioned above, the court will need evidence of changed circumstances before granting the applicant’s request. It is not enough to simply say that circumstances changed. You must present tangible evidence in court showing the change in circumstances. Here are examples of evidence you can demonstrate in court:
- A pay stub to provide details about you or your partner’s pay
- A pink slip or any other document that could show a termination notice
- A copy of the unemployment check
- A copy of a tax return
- Testimony from witnesses
- Proof that your partner has a new job, for instance, a picture of their LinkedIn page
The Judge’s Final Decision
Every time a person goes to court, they run the risk of the judge refusing to grant their request or the judge granting their rights but making a different ruling than they had anticipated. Therefore, have an open mind even as you file a claim for modification as there is no guarantee that it will be granted or that the judge will rule in your favor. Sometimes judges do just the opposite of the applicants’ requests.
Judges always look at the evidence presented in court by both parties involved. If you are requesting a modification because your circumstances changed, you may realize that your partner’s circumstances changed too, and you did not know about it. Remember that the focus of the judge will be on the best interests of the child/children. Therefore, his/her decision will be based on the child’s needs and not on what the parents feel is right.
Out-of-Court Modification
You can still have your divorce decree modified in California without going to court. A lot of people find court processes expensive and time-consuming. However, you must be on the same page with your partner. If you are dealing with a reasonable partner, you could agree without filing a petition in a family court. It will speed up the process and give you peace of mind.
You only need the help of an experienced divorce attorney to do this. Your attorney will not make any decisions for you and your partner as a judge would. He/she will only mediate between you and your partner and help you reach an agreement with which you can live. You can speak to your attorney for advice and guidance and then consult your partner to see whether or not he/she feels the same about modifying.
If you can reach an understanding about modifying the divorce decree and the specific areas that need to be changed, your attorney will draft an arrangement that must be signed by a judge. Having the agreement signed by the judge makes it easy for you to enforce it in case your partner fails to comply with the deal. Every time new child support, visitation, and alimony orders are made by a court, the involved parents must fill out a different form for Child Support Case Registry, even if there was an agreement between them. It puts the case in the national registry. To make it easy for one partner to reinforce the order later on if there will be a need.
If you and your partner are on good terms and are interested in your child’s welfare, it will not hurt to try to modify the decree out-of-court. However, you can always seek a judge’s help if you cannot agree on some areas.
Post-Judgment Enforcement
Post-judgment enforcement involves court orders after divorce. Judges give court orders in a family law court to provide direction for involved partners after their marriage’s dissolution. Unfortunately, people do not always adhere to the terms and conditions of court orders like these. When that happens, and you are the aggrieved party, the law allows you to obtain compliance from them legally.
Court orders are merely pieces of paper and only a first step in resolving a problem you are experiencing. Court orders only work if you can enforce them. The same applies to those orders obtained after a divorce proceeding. They are the court orders received by one partner to protect themselves and their rights. The other partner is required by law to meet the terms of the court’s ruling in the court order. But, if he/she does not do so, you can pursue the court’s help to have the order reinforced.
Common Court Orders in a Divorce Proceeding
There are several kinds of court orders in a family law court. They include:
- Restraining orders
- Child support, visitation, and custody orders
- Orders of enforcement of judgments
- Automatic order for divorce processes
If your partner has violated any of these or other court orders in your divorce decree, you should inform the court about the violations and trust it to follow through with enforcement.
A protective order will allow the court to understand the tolerable contact between you and your partner and the children. If your partner violated a protective order, the court will know how to enforce it effectively and what actions should be taken against your partner.
If, on the other hand, you are struggling to obtain child support from your partner after divorce, you are fighting for your visitation rights, or you have not received anything on alimony, it is advisable to take action. Issues regarding enforcing court orders after judgment can be complicated. Thus, you need the help and guidance of an experienced divorce attorney.
All court orders involved in the divorce process are subject to court enforcement. Therefore, you need to keep a copy of the court order with you everywhere you might need access to it. If it is a restraining order, you might have to keep a copy at home, at your workplace, with your caregivers, and in places where your children visit (where the order covers children).
When your partner violates the order, and after fruitless attempts to have him/her follow the court order, you might need to call the police and then petition the court for enforcement of the order. You should have accurate accounts of what you consider violations of the specific court order, including statements and eyewitness accounts.
California law has many court orders that have been automated, which take effect immediately when a person files for divorce. These temporary restraining orders do not require the applicant’s action to be effected. But they will protect the applicant from any significant changes in the financial arrangements and child custody issues in the divorce. Thus, your partner will not be able to take your child out of the state or even deny you access to the child within that period. Additionally, he/she cannot sell or even acquire loans against any property or change details of a life insurance policy without a court order or your consent.
Find a San Diego Divorce Attorney Near Me
The divorce process is physically, emotionally, and financially straining. Involved parties want for it to end as soon as possible. However, due to unavoidable circumstances, you might have to go back to court to have your divorce decree modified or court orders enforced. Here, you need the help of an experienced divorce attorney for a more straightforward and productive process. At San Diego Divorce Attorney, we have the necessary experience to help you fight for your rights. Call us at 858-529-5150 today and let us walk you through the process.
