Post-Decree Motions

What is a post-decree motion?"

"Post-decree motions" are filed when a divorced (or legally separated) couple engages in "post-decree litigation," which basically means a couple is fighting about issues after the final divorce decree, and they're headed back to court to resolve them.

Often, one ex-spouse determines that the other has violated (disobeyed) a court order relating to the divorce, for example, when one ex-spouse fails to pay court-ordered alimony. The parties can try to work out their differences on their own (e.g., reach an agreement for timely alimony payments) but if that fails, the aggrieved spouse may have to file a "motion" (legal paperwork) requesting that the court enforce the original order and punish the offending ex-spouse. This is generally known as a "contempt" action.

What sorts of issues are handled with post-decree motions?

Child custody and support

Disputes over child-related issues, such as custody, visitation, support and health care are a major source of post-decree litigation. In all cases involving minor children, the court that issued the original decree keeps its "jurisdiction" (authority) to hear future child-related matters. This is referred to as the continuing jurisdiction of the court.

Many post-decree motions involve disputes over the allocation of parental rights and responsibilities - custody. When these types of arguments arise, parents may ask the court to change the current child custody arrangements.

If a number of legal tests are met (these tests will depend entirely on the child custody laws in your state), a court may modify the existing custody order. Generally speaking, the parent seeking a change in custody must show a court the following:

• that a substantial change of circumstances has occurred since the time of the original custody order
• that the change in custody is in the best interests of the child, and
• that the benefit resulting from the change will outweigh any harm.

If you have questions about custody arrangements, you should contact an experienced family law attorney for advice.

Sometimes, in custody modification proceedings, the court will appoint a "guardian ad litem," which is ususally an attorney, who is tasked with representing the child's interests. The guardian may conduct interviews with both parents and the child, visits the child in both parents' homes, and may interview other relevant witnesses. Ultimately, the guardian will make a recommendation to the judge.

In addition, many times, courts are asked to review the amount of child support that should be paid.

Alimony

Alimony is another hot button post-litigation issue. Often, a court will retain jurisdiction over the issue of spousal support, then if circumstances change from the time of the original spousal support award, the amount and/or duration of alimony may be modified (changed). This generally happens when there has been a significant and unforeseen change in one spouse's income.

For example, if the paying spouse involuntarily loses a job and makes diligent efforts to find employment, but is still out of work and can't afford to pay support, a judge may lower or suspend alimony payments.

However, judges will scrutinize these requests to make sure the paying spouse isn't simply trying to avoid alimony. If a judge finds that the paying spouse voluntarily quit or decreased income, the court may "impute" income, meaning calculate and order alimony based on what the paying spouse could earn, not the artificially decreased amount of income.

What steps do I need to take to get my post-decree motion heard?

As stated above, post-decree litigation is commenced in the form of a motion by one party. The original case caption and number must be used on all post-decree motion paperwork. The person filing the motion must also serve (deliver) a copy of the motion on the other party, just like in the divorce proceeding.

The motion will then be set for a hearing before a judge or magistrate (depending on the rules of your state and/or county). A magistrate is an attorney appointed by the court to hear a variety of pre-decree and post-decree domestic relations matters. The magistrate functions like a judge in the case and conducts all conferences, hearings and trials. Because of the high volume of cases set before judges and magistrates, it may take some time before an actual trial can occur.

Prior to trial, the parties (or their attorneys) may be able to conduct "discovery," which refers to methods of investigation designed to gather relevant information about the case. Discovery includes, but isn't limited to, the following:

• oral depositions
• written interrogatories
• requests for written admissions, and
• requests for inspection and production of documents or things.

In certain cases, such as a motion to set aside a divorce judgment, post-decree discovery may be restricted. Discovery can be complicated because it requires a strong knowledge of state statutes (laws) governing evidence and civil procedure. If you're going to pursue post-decree litigation, you should speak with an experienced family law attorney in your area to find out more about discovery.

Settlement or Court

If the parties can settle their issues before trial, they can let the court know they've come to an agreement, so that the motion and entry of judgment may be "walked" through the court process, eliminating the need for a hearing. If not, you'll proceed to trial where you (or your attorney) will submit the evidence you obtained through discovery and present live testimony.

If you're divorced, or legally separated, and you're having a dispute with your ex that may require court intervention, you should speak with an experienced family law attorney who can give you advice on how to proceed.