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After a divorce or legal separation, one party may need to return to the court to modify or to enforce the original divorce decree and/or settlement agreement. These post-judgment modification or contempt actions can also be necessary to change or modify the financial (alimony or child support only) or custodial terms of the final divorce decree.
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Understanding Court Authority in Modifying Alimony, Child Support, and Custody Terms
The court has the authority to modify (increase or decrease) an amount of alimony or child support provided for within the original divorce decree (upon meeting certain criteria); however, the court does not have any authority to modify the property division terms.
Likewise, the court has the authority to modify or change the custodial and visitation terms of the original divorce decree, upon certain legal thresholds being met.
Chambers Family Law divorce attorneys are highly experienced and can advise you on when and how a modification to your divorce decree or settlement might be necessary.
We care about your outcome following a divorce and will walk you through post-judgment actions when necessary.
Types of Post-Judgment/Contempt Actions
The final settlement of your divorce outlines aspects like custody details, property division, alimony terms and child support. You and your ex-spouse are legally required to strictly adhere to the terms outlined in your divorce decree.
When that doesn’t occur, you can return to court to file the following types of actions to enforce the terms that you received in the final divorce decree, when the other party does not comply:
A Petition for contempt citation or Motion for contempt. This is filed in the form of a post-judgment court motion when a parent does not follow a custody/visitation schedule, the ex-spouse delays or does not pay child support or alimony, or the ex-spouse does not comply with the other financial terms in the divorce decree, including division of property, such as delaying the sale of shared marital property.
Motions to enforce can also be made to compel either party to abide by court-ordered mediation or counseling. Anything ordered in the divorce decree that is not being followed is grounds to file a contempt action to ask the court to compel or force the other party to comply. You will need evidence that the contempt is "willful.”
The original court will retain jurisdiction to enforce its prior court orders, even if one or both spouses have moved out of state.
Before you file a contempt, you must make sure you are in full compliance with the order.
Other types of Post-Judgment Actions
Other Post-Judgment Actions
Motions to set aside the final judgment and divorce decree. This could happen if a legal mistake was made during the original trial, or if a witness or evidence was a surprise or not disclosed or evidence was withheld. A motion to set aside can also be made in the case of neglect or fraud.
Motions to interpret vague or ambiguous terms of a judgment. These instances are rarer, but either party may bring a motion to request the court interpret and clarify the terms of the judgment.
Motions to modify a judgment. There are many kinds of judgments, decrees and orders that are modifiable in family law. Child custody, visitation, child support, and spousal support/alimony are the types of court orders that can be modified, upon certain legal criteria being met.
Courts will consider a modification if there are certain sufficient changes in circumstances since the date of the last court order or divorce decree; and for custody modifications so long as the change/modification is in the best interest of the child(ren). A modification requires a completely new lawsuit (with full discovery and procedural requirements) requesting a change to the financial and/or custodial terms of the prior order.
Property division, and certain types of alimony awards, such as "lump sum," or awards in lieu of property division, are not subject to modification
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Initiating the Post-Judgment Process
Filing a post-judgment action in Georgia is a complex procedure, but our attorneys can assist you throughout the process. Since the two most frequent post-judgment actions are to change child custody or child support, we’ll outline the process for both.
Motion to Change Child Custody or Support
Filing a post-judgment action in Georgia is a complex procedure, but our attorneys can assist you throughout the process. Since the two most frequent post-judgment actions are to change child custody or child support, or to enforce a prior court order by contempt, we’ll outline the process for both.
You can request a modification of child support if there is a change in income or financial circumstances of either parent since the date of the prior court order or original divorce decree, such as a loss of income, relocation, increase in income or financial status, decrease in income or financial status, or a change in the child’s specific needs.
To file a motion to modify your support orders, you will need to:
- Complete a motion to modify child support or alimony. You must demonstrate circumstances that warrant a change. (For instance, the loss of a job can be grounds to modify alimony or child support.)
- Complete a verification form, which asks you to sign and swear under oath that the information you include in the petition is true and correct.
- Attach a copy of your original court orders to your petition.
- Complete other required forms (i.e., summons, parenting plan, child support worksheet, etc.).
- Attach all completed forms and file the motion with the same court where jurisdiction and venue are proper depending on certain circumstances.
Once modification forms are completed:
Once modification forms are completed, your ex-spouse will be served with the petition and given time to respond to the motion, similar to how a complaint for divorce was served. The court will schedule a hearing date for the presentation of arguments. The offending party must have an opportunity to defend him or herself but generally has only 30 days to answer the motion and to present his or her defenses as to why the modification should not be granted.
If contested, your attorney will request discovery of information from the opposing party to support the change to custody or support being requested, and will handle all pretrial proceedings necessary before the final hearing of presenting your petition to the court for determination.
Your petition will then proceed to a final trial or hearing before the court.
You and your co-parent can file a Consent Order to a petition to modify custody, or child support, or alimony if you agree on the terms to be modified.
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Post-Judgment Defense Actions
If your ex-spouse files a post-judgment enforcement/contempt action against you, our divorce attorneys can evaluate the validity of the case and advise you on next steps.
You will have several options to defend yourself including submitting a motion to dismiss, or alleging one or more of the defenses to the post-judgment action listed below:
Post Judgment Actions
Inability to comply with the court order
Change in circumstances making it impossible to comply
Mistake or misunderstanding of the order
Vague or incomplete terms
“Unclean hands” meaning the other party has also violated the order
At the hearing you must ultimately show that either there your failure to comply with the order or non-compliance was not willful or intentional because of one of the above defenses.
It's important to remember that contempt actions are often complex matters that involve both parties putting forth evidence to prove their case.
Obtaining this evidence often involves undergoing the discovery process and enlisting the aid of experts for analysis and testimony.
Actions the Court May Take in Post-Judgment Motions
Once a post-judgment/contempt action is presented before the court, the judge has several options. Depending on the facts of the case and the thoroughness of evidence presented to the court, one of the following actions may be taken:
Post Judgment Actions
Contempt sanctions – This can include the court ordering the other party to comply with their obligations by a certain date or be incarcerated and held in jail until they fully comply.
Modifications of court orders – The original custody or support orders can be changed to reflect new evidence presented to the court.
Attorney’s fees and costs – Your ex-spouse may be forced to pay your attorney’s fees and costs for discovery.
Incarceration or community service – If the judge finds willful disregard for the original court orders and an unwillingness to comply, jail time and/or community service can result.
Atlanta Attorneys Who Help With Post Judgment Collections
Circumstances change. When the custody of your child, child support, or alimony needs reevaluation, it’s important to have an attorney with a proven track record of success by your side.
Chambers Family Law can provide the thorough legal advice you need along with the emotional support needed to walk this path again. Please contact us for a consultation.
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Frequently Asked Questions About
Post Judgement Collections
A Post Judgment Collections Contempt Application is a legal request made to the court when one party fails to comply with a court order following a judgment.
This is often used in cases where a party does not pay the monetary judgment as ordered by the court.
You should consider filing a Contempt Application if the other party is not complying with the court's judgment, particularly if they are failing to make the required payments.
This is a serious allegation, so it is typically best to consult with an attorney before proceeding.
The process generally involves filing a motion with the court that details how the other party is in contempt of the court's order. This typically includes evidence of the non-compliance. Once the motion is filed, the court will schedule a hearing to determine whether the party is indeed in contempt.
If a court finds a party in contempt for not adhering to a judgment order, it can enforce a variety of penalties. These can range from fines and payment of the other party’s attorney fees to more severe punishments such as property liens or even jail time in extreme cases.
Yes, a lawyer can be very helpful in this process. They can help you understand your legal rights, gather necessary evidence, file the appropriate paperwork, and represent your interests in court.
Legal proceedings can be complex, so it is often beneficial to have an expert guide you through the process.