Decree Modification, Enforcement, & Appeals

Enforcing Your Divorce Decree

Enforcing a court order can be the most trying element of the divorce process, depending on how the parties feel about each other when it’s over. The enforcement process can become a game of guerilla warfare, in which one party strikes out against the other and then recedes to find out if the other party will retaliate. This game may involve one party who acts childlike, failing to live up to an agreement or a court order and just daring the other party to come down to his or her level. If children are involved in the divorce, it is unfortunate that they are often the victims most injured by these silly games.

Initiate Contempt Actions

To do away with all the game-playing, often the party being tested has to charge the other with a contempt action. This action against the opposing party can enforce the payments of alimony, child support, attorney’s fees, and certain types of financial and to do away with all the game-playing, often the party being tested has to charge the other with a contempt action. This action against the opposing party can enforce the payments of alimony, child support, attorney’s fees, and certain types of financial and property matters, as well as child custody issues. The party filing the contempt action must show that the opposing party failed to comply with a judgment or order of the court. For example, if a party doesn’t pay child support, but has worked during the entire time of the contemptuous behavior and chosen to spend the money on other things, that person is guilty of a willful refusal to comply with the divorce decree.

It takes a certain amount of realism on your part to establish the other person’s true motivation. For instance, if the opposing party lost a job, through no fault of his own, and did not have an income during the time of the missed child support payments, that makes this a different case. Resolution of this issue will depend on the circumstances surrounding the failure to comply with the decree and the party’s ability to explain the job loss. Likewise, a parent can also be held in contempt for failing to comply with a visitation schedule or for not returning the child to the custodial parent.

Remember that under a contempt action, often you are asking the court to put the opposing party in jail for failure to comply with the decree. In many cases, this is necessary to show the offending party that the obligation must be met. But do you really want to put your children’s mother or father in jail? Certainly this action can diminish your relationship. As a result, you must weigh the seriousness of the contempt against the stark reality of jailing your ex-mate.

Under a contempt ruling, a party may be placed in jail and released by purging the contempt action. For example, the court may order the opposing party to jail until back child support is paid. If the party is financially unable to pay, the court may decide that there is no constructive reason to keep that person in jail. It is amazing, though how quickly that party, his or her relatives or new spouse can come up with money when jail is an alternative.

Sometimes, you can predict compliance problems with your former spouse prior to the final resolution. If this is a possibility in your case, ask your attorney how to limit the possibility of contempt after your divorce.

Stand Up to Your Ex

Give the opposing party adequate time to comply before filing a contempt action, but don’t wait too long to file. Many people wait until they are owed tens of thousands of dollars before filing an action. Even if you are successful with a contempt action, and the ex-spouse resolves to pay the debt, often you will have to accept installment payments over time. Each party should keep detailed records of every support payment received or paid under the divorce decree, to establish a payment history for any future contempt action.

A contempt action should be filed as soon as possible after the party fails to comply. This demonstrates that you demand compliance. Your relationship with the opposing party after the divorce will directly affect your initial actions. If an ex-husband violates the court order without any complaint from the ex-wife, he will probably continue this action in the future. If she will not tolerate missed child support payments or the husband refusing to return the child at the scheduled time, she may be able to limit the contemptuous behavior.

Unfortunately, certain spouses just refuse to abide by the decree and should go to jail for failure to comply. While this is an unfortunate situation, it is critical to send a message to that spouse that compliance with a court order is necessary and required. When people in the courtroom see the sheriff take a party to jail for contempt, great efforts are made to work out problems between the parties.

Seeking Modification of Your Divorce Decree

A change in circumstances after the original divorce decree was entered may require you to modify certain provisions of that decree. The most common modifications involve child custody, child support, visitation and alimony. The law surrounding a petition to modify is very limited, and you should determine whether a modification is possible on a case-by-case basis.

While modifications to your divorce decree are possible, this should not compel you to take your original case lightly. You should obtain the best possible result in the initial divorce agreement and rely on the modification process only to correct an unforeseen change in circumstances.

Custody Modifications

When the parties do not agree after the divorce about the raising of children, one party may attempt to change the custody arrangement. It is extremely difficult to modify a prior custody award that transfers custody from one parent to the other. A custody modification is one of the most arduous and expensive post-divorce actions. The positive change brought about by the modification must offset the disruptive effect caused by transferring custody. The court doesn’t take into consideration what helps a parent. The judge is sworn to rule in the best interest of the child. A parent seeking to modify custody must show the court that the change would promote the child’s best interest and that the child is being adversely affected in the present situation. Often a party will file a custody modification when the actual conflict concerns the other spouse and not whether that spouse has had an impact on the child. The party seeking the modification must show that the child has actually been affected by the change in circumstances.

Simply because the custodial parent has a new boyfriend or girlfriend, for example, does not mean the child’s situation has changed for the worse. If the child has not witnessed any elicit or abusive conduct between the parent and the friend, the party asking for the modification may not be able to establish any actual harm. And just because the non-custodial parent’s situation has improved, he or she will not automatically receive custody in a modification. For example, many mothers who initially give up custody due to a personal problem mistakenly believe that they will automatically get custody back as soon as they get their lives back together. Even though the non-custodial parent’s situation has improved, it does not mean there is anything wrong with the way the custodial parent has been caring for the child. However, if the non-custodial parent can show serious harm to the child, it may be possible to modify custody. Keep in mind that harm can be in a variety of forms other than abuse. For example, if the custodial parent is driving while intoxicated, with the child in the car, a reasonable argument can be made that the child’s safety is in jeopardy.

Modifying custody is a very difficult area of the law that causes extreme tension and emotion between the parties. Many spouses are upset to learn that they may not be able to change the conditions in which their children are living. This is why it is important to address these concerns under the original divorce decree. It is surprising how many parents give an abusive ex either joint custody or substantial visitation rights with a child he or she has abused throughout the marriage. After one parent has granted the abusive parent visitation, it is very difficult to convince a trial judge during a modification proceeding that the parent’s visitation should be limited.

It is possible to modify the custody provision, but you should be ready for a difficult fight. A custody trial is one of the most difficult and emotionally draining processes you will ever undertake. The legal fees associated with a custody modification can be enormous, and these costs must be weighed in making a decision whether or not to proceed with a modification. If this is an issue in your case, meet with your attorney to determine whether a modification would be in your best interest or if you can work out a different arrangement without going to court. Invest a portion of the potential fees to find out whether you should proceed or if you are not likely to be successful.

Child Support Modifications

If there is an increase or decrease in the income of either party, it may be possible to modify the prior child support award. If the payor spouse’s income has significantly increased, the child support payment should probably increase. At the same time, if the payor spouse has lost his job or had his income significantly decreased, that spouse may be entitled to a reduction in child support. Many parents are shocked to find out that their child support payment is going up several hundred dollars or more due to changes in the child support guidelines.

It is also common to modify the child support award to include the payment of college expenses. This modification action must be filed before the child reaches the age of majority (19 in Alabama) or the action will be waived forever. If post-majority college support is an issue, refer to the earlier section discussing college support under the divorce agreement.

Most divorce experts can calculate the projected new child support payment from the gross monthly income figures for both parents as well as any day care and health insurance expenses. But there are other considerations when you seek increased support. A non-custodial parent may attempt to go after custody when the child support modification action is filed. This type of defensive action is usually apparent to the court as an effort to avoid paying higher child support, but it can create problems for the custodial parent who is seeking an increase in child support. Furthermore, if the custodial parent has ha less than exemplary conduct since the divorce, he or she may not want to file for increased child support and risk custody coming into question. If the custodial parent is living with a friend of the opposite sex, for example, and this activity is brought to the attention of the trial court, the custodial parent may not only lose on the child support modification, but lose custody of the child as well.

Both parents have a duty to support their children. If the non custodial parent gets a significant pay raise, an increase in child support is appropriate. Your children deserve to enjoy a lifestyle as close as possible to what they would have enjoyed if their parents remained together. However, if the non-custodial parent pays expenses beyond his child support obligation, you may not want to risk losing the extra payments to your children for a slight increase in child support. Use common sense borne out of the facts and circumstances surrounding each particular case when determining your course of action. If this could potentially be an issue in your case, sit down with your attorney and discuss the proposed new child support payment and the costs associated with achieving such a payment. As we’ve said before, don’t spend thousands of dollars in fees and costs to win hundreds of dollars in support payments.

Visitation Modifications

After the heat of divorce has cooled, many parents alter visitation between themselves. Informal modifications are common, but they aren’t enforceable by law. Most parents find that as their children get older, they and the kids need a little flexibility. This cooperation is recommended, as long as you feel okay about the changes. It is difficult and expensive, though to get such changes mandated by the courts.

Quite often, those changes mean that a non-custodial parent gets more time with the children. For instance, a teenage child may want to take a long trip with that parent, or spend an entire summer with the non-custodial grandparents. Each request should be carefully considered by the custodial parent, keeping in mind the needs of the child, the ability of the other parent to accept this responsibility, and how the changes may affect your future rights.

The non-custodial parent should not begin to believe that each time he or she makes such a request, the other parent has to go along with it. The custodial parent still is in charge, and does not have to grant any variations to the agree-upon visitation schedule.

These modifications, like all others, are very expensive to achieve if you have to go to court. Remember that your children will get older and their circumstances will change. If you and your spouse remain flexible, you can avoid a lot of heartache down the road.

Alimony Modifications

As stated earlier, certain forms of alimony may be modified in the future. Periodic alimony can be modified if there is a change of circumstances in the future. The burden of proving a modification to the decree is on the party seeking the change. Both the payor spouse and the recipient spouse can seek a modification of alimony. If the payor spouse’s income has decreased significantly, this spouse may be able to request a decrease in the alimony payments. At the same time, if the needs of the recipient spouse have increased, that spouse may be able to request an increase in alimony. Another alimony modification involves requesting an extension of the time period of the alimony payments.

The law is specific in this area, and the court has held that a party who voluntarily quits his job may not necessarily be awarded a reduction in alimony, depending on the particular circumstances. However, a party who loses his job through no fault of his own, and who suffers a decrease in income, may be entitled to a modification in alimony. When one of the parties relies on the speculation of future events, such as a job change, a petition to modify is likely to be denied as being premature. If a modification is an issue in your case, meet with your attorney to determine whether a modification is possible in your situation.

Appealing Your Divorce Decree

Divorce actions in Alabama give you one big juicy bite at the apple of judicial success. Take the largest bite you can during the trial and make the most of it, because you will rarely get another attempt to present your case in court. Your appeal options for relief of the trial court’s decisions are limited and rarely succeed, although it may be possible to challenge the court’s ruling provided strict time limits are met.

Motion to Set Aside or for a New Trial

You have the right to file a motion to set aside the divorce decree or request a new trial if you are not satisfied with the court’s ruling. Under Alabama law, this type of motion generally must be filed within 30 days of the date of the order being contested. These motions usually are not successful, unless the court failed to consider a material fact in evidence, or if the court made a clear and distinct error in its ruling. The trial judge heard the entire trial, is familiar with the case, and can review his notes to determine if an error occurred. Remember that you are asking the judge to admit that he or she made an error in the case. It’s difficult for anyone, including a judge, to review and reconsider his or her own behavior and come to a different conclusion. If your motion is not successful, you are then forced to use the appeal process to change the decree.

Time Limits for Appeal

Either party to the divorce has the right to appeal a final judgment. You must file that notice of an appeal within 42 days after the judgment is entered or from the day the post-trial motion is denied, whichever is later.

An appeal is a last-ditch effort to change the divorce decree. It is difficult to win on appeal and there is a presumption in favor of the divorce decree by the trial court, which saw and heard the evidence. The law is specific as to what issues can and cannot be appealed, and the standard of review for such an appeal is stringent. The Alabama Court of Appeals hears the appeal, and it is limited to the evidence you presented at trial. You cannot come into an appeal of your divorce case offering new evidence from witnesses the judge has not heard. Many people are shocked to find their failure to present crucial evidence at trial may ruin their chances for appeal. To preserve the case you presented at trial, you must have a court reporter record the testimony and any rulings made during the trial in order to have an exact record.

Such an appeal is an expensive legal procedure that can cost significantly more than the divorce itself. The lawyer must write a history of the case for the court of appeals, as well as a history of the testimony at trial. If one lawyer handles the original case and another the appeal, the appellate attorney will have to spend a considerable amount of time getting familiar with the facts of the case. If the appeal is not successful and you decide to petition the Alabama Supreme Court, your lawyer may have to draft additional documents and the costs will continue to rise. That is why it is always more effective to handle the case properly at trial than to rely on the appeal process to remedy an injustice.