Modifications to a Prior Divorce Judgment

You are now divorced. You have your final divorce judgment. Now either you or your former spouse believes that the terms of the divorce judgment are either unfair, unpractical to follow, or, that circumstances have changed which now require a modification to the terms of the divorce judgment. The divorce judgment may be modified in certain limited circumstances. Request to modify a divorce judgment requires specialized knowledge and skill. It is best to seek the assistance from a
trusted law firm that has the experience necessary to successfully modify a judgment of divorce.

Attorneys Dwight Darrow and Dean Dietrich of Darrow & Dietrich, S.C. have over 70 years of combined experience working on divorce cases. The lawyers at Darrow & Dietrich, S.C. can provide you with the legal counsel and representation you need to achieve your goals. For a free initial consultation regarding the modification of a divorce judgment, contact the law firm of Darrow & Dietrich, S.C. at (920) 451-6100.

Your divorce judgment may address legal custody and physical placement of minor children; child support; maintenance; and property division. There are special rules that govern the modification of each of these categories that may be addressed during your divorce judgment.

For instance, it is a rare case where a court would modify the provisions in a divorce judgment as it relates to the division of property. Typically, the judgment of divorce, as it relates to property division, is a final decision of the Court and/or the parties. That final decision is typically not subject to modification in post-divorce proceedings. There are, of course, exceptions to this general rule. Those exceptions include a failure to identify an asset or liability within the divorce judgment; failure to properly divide an asset or liability; or the failure by a spouse to pay that bill in accordance with the terms of the divorce judgment.

Issues that relate to legal custody and physical placement of minor children are reviewable in most circumstances. For instance, a party may request a modification to the terms of the divorce judgment as it relates to legal custody and physical placement of the minor children. There are special rules that govern these kinds of requests. Within the first two years of the entry of a divorce judgment it is very difficult to modify the terms of a divorce judgment as it relates to the legal custody and physical placement of minor children. After the initial two-year time period, a party may request
modification to the terms of the divorce judgment as it relates to legal custody and physical placement of minor children if that party can show, to the satisfaction of the Court, that a substantial change in circumstances has occurred which necessitates the modification of the divorce judgement.

A party may request a review and award of child support. A request for review of child support is based upon a substantial change in the financial circumstances of a party who has a child support obligation. Under certain circumstances, the Court may find, as a matter of law, that a substantial change in circumstances has occurred. A consultation with an experienced divorce lawyer will aid you in understanding whether or not a modification of child support would be appropriate in your case.

A party may request that the Court modify the terms of the divorce judgment with respect to payment of maintenance if that party can show that a substantial change in financial circumstances of either party has occurred since the entry of the last order to modify the maintenance award.

The general procedure used in requesting of a modification of a divorce judgment is to file a notice of motion and motion with appropriate supporting affidavits and documents asking the Court to review the request to modify the divorce judgment. If the request relates to legal custody and physical placement of the minor children, the Court will, before scheduling a hearing, refer the parties to mediation. If mediation does not result in an agreement reached by the parties, the Court will then appoint a guardian ad litem. It is the job of the guardian ad litem to represent the best interests of the minor children. The guardian ad litem will conduct an investigation into the issues alleged in the motion for modification. When the guardian ad litem is done with their investigation the Court will set the matter for a hearing. At the hearing the parties and witnesses will testify and the Court will determine whether or not satisfactory grounds have been proven which would necessitate either a modification of legal custody and/or physical placement of the children.

Motions to modify child support obligations and maintenance obligations will be set for a hearing before the Court. Typically, these hearings are set very quickly. That means that prior to filing a motion to modify a financial obligation of one of the parties of a divorce judgment, it is necessary to have all of the appropriate data and information and the parties should be prepared for a fairly immediate hearing. Our experience is that most modification motions are set within a three to four week time period from the date the motion is filed. This fact requires that the attorney you employ to represent you should be immediately ready, willing, and able to present your case to the Court.

A related topic to motions of a modification of a divorce judgment is motions to enforce the terms of a divorce judgment. A motion to enforce the terms of a divorce judgment may also be called a motion for contempt.

Motions to enforce the terms of a divorce judgment are typically filed with respect to child placement issues and/or the payment of child support and related financial obligations of a party. If one parent withholds a child or simply does not follow a court ordered placement schedule then the other parent has the opportunity to file a motion asking the Court to issue an order to the non- compliant parent to strictly comply with and follow the terms of the divorce judgment. In these
kinds of motions, the Court may award actual attorney’s fees and costs to the parent who is successful.

If one party willfully violates the terms of the Court order, the other party should file a motion with the Court seeking to hold the non-compliant party in contempt of the Court’s order. If the Court finds a party in contempt for failure to follow the terms of a court order, the Court may impose sanctions. Sanctions can include a jail sentence; payment of the opposing party’s actual attorney’s fees and costs; and other relief.

To learn more about modifying a divorce judgment or enforcing a divorce judgment and to speak with one of our attorneys directly please contact Darrow & Dietrich, S.C. at (920) 451-6100 to schedule your free initial consultation.