I am searching for a family law attorney and I know this is a complicated question. What I am specifically asking while I search is what the right answer is to what I thought was a simple question. My ex-wife has filed a complaint for modification less than 17 months after we were given a final Judgment. In her complaint she’s seeking sole legal custody as well as asking I pay all of costs that were ordered as shared for some items, then she asks I pay other costs I’d been told were part of what child support covers. My specific question is can she introduce documents or testimony from our original trial as well as items she’s already filed a contempt complaint against me for where I’ve been found not in contempt? The GAL we had did favor my exwife. At the end of the trial they stated shared legal custody would be a challenge, but they also suggested a parenting coordinator. My ex-wife refused then and still refuses to even discuss one. Also she’s wanting to present like the transcript or other things from the trial, but my understanding was this complaint has to only be what’s “changed” since the final order? It’s as though she’s trying for a 2nd shot. Can she bring in contempt’s?
During a trial on a Modification, the Court will look to the circumstances "as they were" during the Divorce trial/time period and then look to the circumstances "as they are" today. Your former wife must show a "material change in circumstances."
The Court typically looks back to the Judgment or Order to see the circumstances "as they were." For evidence, there may be some relevance to items from the previous trial to show the previous circumstances as they were, but I'd doubt that much of what you mention would be admissible. Ultimately, I'd argue that the Judgment/Order is the driving document and that reasoning or circumstances behind it are irrelevant to the current litigation. I'd expect the Court to rule on this on a case-by-case basis depending on the evidence offered (but that much would not be considered).
Hope this helps!
This is not legal advice and is not intended to create an attorney-client relationship. You should speak to an attorney for further information.
Your former spouse should only be filing a Modification if there has been a material change in circumstances since the divorce. Your argument should also include that there has been no material change in circumstances and that she is merely attempting to take a second bite of the apple regarding custody and support obligations. Good luck.
I am a Massachusetts attorney and answer questions based on Massachusetts law. The above answer is for educational purposes only and does not create an attorney client relationship or constitute legal advice.
Most Judges only consider evidence from the date of the last judgment forward, using testimony from the last trial would be unusual. It should not be admissible. There may be an argument that you could make that all or part of the modification should be dismissed. You should seek counsel if you do not already have one.
I am a Massachusetts attorney and answer questions solely based on Massachusetts law. The above answer is for educational purposes only and does not create an attorney client relationship or constitute legal advice. I would strongly recommend that you schedule a meeting with an experienced attorney who can review your facts in detail, ask additional questions and provide you with advice.
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