Types of Post-Decree Litigation
Think you’re done with your ex once your divorce is finalized?
While that is surely the goal, not everyone is so lucky. Many former spouses find themselves back in court years after the entry of their divorce judgments seeking to either a modify or enforce their divorce decrees.
Post-decree includes all litigation that occurs after a decree of divorce, dissolution of marriage, legal separation, or judgment of paternity is entered. Post-decree lawyers will often receive inquiries from former or new clients requesting one or more of the following:
- Modification of Property Allocation Provisions
Former clients will oftentimes return to their past attorneys and request a modification of the property allocation that they received within their divorce judgment. However the problem with this is that property allocations are typically final, and former spouses are barred from bringing their ex-spouse’s back into court to renegotiate their assets. The only avenue one has in seeking this type of modification is filing a motion to vacate the entire judgment, but courts seldom grant such motions. Because property allocations are a one-shot deal, it is very important that you hire a good lawyer during your divorce ensuring that your interests are protected and that you are adequately satisfied with your property allocation.
- Modification of Child Support
Child support is calculated almost exclusively based on how much the paying party is making at the time the divorce decree is entered. Because financial circumstances tend to vary significantly throughout one’s life, former spouses can often find themselves in a completely different financial situation than they were in at the time their decree was entered. Under certain circumstances, a former spouse can petition the court to either decrease or increase the other’s child support obligation appropriately. However, just because your former spouse has a new job does NOT mean you are eligible for a modification. Under the statute, there must truly be “a substantial change in circumstances” from the time at which the judgment was entered. Thus you would have to prove that either yourself or your ex-spouse is making substantially less or substantially more than the date of entry of the judgment to request a modification.
- Modification of Maintenance
The same as child support is true in regards to maintenance. If you are making much less than you were at the time of your judgment, yet you have a maintenance obligation that reflects your prior income, you can ask the court to reduce your obligation. Further, if you pay maintenance to your ex-spouse and you discover that he or she has either re-married or is cohabitating with a boyfriend or girlfriend, under Illinois law your maintenance obligation can be terminated completely and you should either contact a lawyer or petition the court to order as such.
- Modification of Parenting Time
Parenting time is always modifiable under Illinois law as long as such modification is in the best interests of the children. However, under a practical approach, it is a good idea to have some type of substantial change in circumstances as to why the court should modify the parenting schedule that can be explained to the judge.
- Modification of Custody
Custody under the statute is not modifiable within the first two (2) years of judgment unless one parent can show risk of serious endangerment of the child if the modification is not granted. This is so children are ensured some type of stability and consistency under this regard. However after the two year period has passed, the non-custodial parent can return to court and ask for a modification of child custody by showing 1) a change in circumstances and 2) that it is in the best interest of the child to do so.
- College Contribution
In crafting dissolution of marriage judgments, many parties opt to essentially “kick the can down the road” and reserve the issue of college contribution. This is because unless the child is nearing college-age soon, it is hard to determine things such as whether the child will even go to college, how much it will be, and what each parent will be making at that point in time. Thus if your child is nearing college age and your ex-spouse is being difficult in resolving the issue of contribution, you may want to petition the court to resolve the issue for you.
- Petition for Rule to Show Cause
Although parties and their attorneys spend a large amount of time crafting detailed provisions in their divorce decrees which set forth obligations for each party to abide by, too often former spouses disregard their agreements and the opposing party is forced to return to court and ask a judge to hold their ex-spouse in contempt and enforce their judgment. In doing so, you must show that your former-spouse’s failure to adhere to the provisions of the decree was a willful and contumacious violation.
At The Law Offices of Jonathan Merel, P.C. we are extremely experienced in handling all types of post-decree actions for both our former clients and new clients seeking to have their divorce decrees either enforced or modified. If you think any of the above may apply to you, contact The Law Offices of Jonathan Merel, P.C.