For many reasons, problems sometimes can persist even after a divorce is over. In many cases, the post-judgment problems arise because child-related issues (including child support and custody and parenting time) may be reviewed by the court whenever there has been a significant change in circumstances. In other instances, post-judgment issues can come up when a party is not complying with a judgment or settlement agreement, or when the agreement or judgment is not properly drafted, leaving certain issues open or difficult to enforce.
What follows are some examples of situations in which an experienced family law attorney can clean up or solve post-judgment problems.
Attempting to change a child’s established custodial environment without the consent of the other parent is complex, and to be successful, it requires careful planning and thought to reach a desired result. Typically, the parent requesting a change first must, as a threshold matter, persuade a court that there is sufficient evidence that a change is need. The required threshold depends on the type of change that is sought. After the threshold has been met, there may be a hearing to determine whether the change is in the child’s best interests.
This area of the law is extremely complex and nuanced, and for that reason, it is best to consult with an experienced family law attorney before taking any steps on your own to initiate a contested modification an existing custodial arrangement, particularly after the court has entered a judgment establishing a parenting arrangement.
Alimony or spousal support may be modified as long as the judgment of divorce does not have a final, binding, and non-modifiable termination and waiver of the right to ongoing support, or the right to petition the court for modification of spousal support pursuant to M.C.L. § 552.28. “… [T]o be enforceable, agreements to waive the statutory right to petition the court for modification of alimony must clearly and unambiguously set forth that the parties (1) forgo their statutory right to petition the court for modification and (2) agree that the alimony provision is final, binding, and nonmodifiable.” Staple v. Staple, 241 Mich.App. 562, 581 (2000).
An alimony award that is modifiable can be modified on the basis of a showing of new facts or changed circumstances. Thornton v Thornton, 277 Mich App 453, 459 (2007) (citing M.C.L. § 552.28). However, before any such modification may be had, the party seeking modification must show a change in circumstances arising since the entry of the divorce judgment.
Move away and change of domicile petitions are extremely complex, and unless the facts are carefully developed in the context of a detailed analysis of the law, they are difficult to achieve. However, in circumstances such as where a move has the potential to increase a non-custodial parent’s parenting time – rather than frustrate it – a trial court is permitted to approve a change in the child’s custodial residence. Gagnon v. Glowacki, 295 Mich. App. 557, 577, appeal denied, 491 Mich. 949 (2012).
Likewise, if the parenting time schedule after a custodial parent’s move essentially remains the same as the parenting schedule before the move, that move possibly may be approved even without a hearing to determine whether that the move is in the child’s “best interests.” Gagnon, 295 Mich. App. at 577.
An existing child support order may be modified whenever there has been a significant change in circumstances, such as one parent having an income increase or decrease. The “minimum threshold for modification” is a change that causes a 10-percent difference in the currently ordered monthly child support payment, or change of at least $50 each month, whichever is greater.
Divorce settlement agreements entered into by the parties are binding contracts once signed or entered into the record. Unless there is fraud, duress, or mutual mistake, courts are required to uphold divorce property settlements reached through negotiation and agreement of the parties. Quade v. Quade, 238 Mich.App 222, 226 (1999).
Nonetheless, where an agreement has been drafted poorly or ambiguously, misses an important issue, or does not have built-in provisions for default and enforcement, it sometimes is difficult to convince a court to take action to ensure that spouse complies with the agreement that was reached. In those circumstances, it is critical to present to the court a clearly-drafted motion, based not only any helpful judgment language and the law of property settlements, but also setting forth for the court the unique circumstances of your matter that will inspire the court to take action even where the judgment or settlement agreement may be lacking.
There often are many different to fix problems that arise after a divorce, even when an agreement has not been drafted clearly. The terms under which a judgment is self-enforcing often are as important as what is divided and how it is to be paid, and where those terms are deficient, sometimes a significant amount of creativity is required to reach the desired result.
Developing the most constructive and creative solutions to difficult post-judgment problems can help resolve complex situations and ensure stability and security for years to come after the divorce.