Post Decree Modifications
Now you are set, the Court has issued orders so the divorce or family law matter is all over. Or maybe not so fast? Life goes on and things change. Couples may disagree about the interpretation of a court order, or one or both parties may not comply with the order. Frequently parties find that they require post-judgement modifications or enforcement of their orders due to changed circumstances or noncompliance.Post-Decree Modifications
Post-judgement modifications can often be made if there is a substantial change in circumstances. The Court always retains the ability to make modifications for matters involving children, and unless an order states that spousal maintenance is nonmodifiable, spousal maintenance awards can be modified as well. Any financial changes will be retroactive only as to the date of the filing of a request for modification, so if there are substantial changes, it is best not to delay.
Areas of frequent modification and enforcement are:
- Parenting time (AKA child custody and visitation)
- Child support (substantial change is considered + or - 10%)
- Spousal maintenance
For example, perhaps income increases or decreases or one party begins spending substantially more time caring for the children than the order reflects. Or perhaps one party was required to refinance a property or transfer the title to an automobile and they don’t comply. These situations can be addressed with post-judgement orders.
One option when the situation changes or when parties don’t perform as ordered is that both can agree to a modification and file a stipulated modification agreement with the Court. The Court can then issue the modification as an order. If the parties do not communicate well, they can seek the assistance of others, such as a mediator, who can potentially help them reach agreement. When a modified order is issued, it can be enforced to the same extent as the original order.
What if a party is not complying with the court order and is refusing requests to do so?Motions to Enforce
If a party does not comply with a Court order, the opposing party may initiate a motion to enforce the order. This is the least complex approach to ask a court to enforce an order. A more complex method is to request enforcement through contempt of court proceedings. In contempt of court proceedings, there are additional remedies available.Contempt of Court Proceedings
Colorado court orders can be enforced by either remedial or punitive contempt proceedings. This applies to any court order, whether given at a status conference or a temporary or permanent orders hearing. Both types of contempt proceedings require an ability of a party to comply with the order.
When the goal is to enforce compliance with the court order, remedial contempt may be pursued. With remedial contempt, a party can be ordered to pay attorney fees and can also be ordered to jail until he or she complies with the court order. However, a judge must find a present ability to comply with the order.
The elements that must be proven in order to obtain an order for remedial contempt are:
- A lawful order has been entered by the court; and
- The party had knowledge of the court order; and
- The party has not complied with the order; and
- The party had the ability to comply with the order; and
- The party has the present ability to comply with the order
Punitive contempt is similar to remedial contempt, except that attorney fees generally can not be awarded, however a jail sentence can be issued.
If you are looking for a dependable guide to lead you through the difficult and unfamiliar divorce and family law terrain, contact me at 303-534-1958, or by using the online contact form. I am looking forward to navigating a route with you.