Post-decree enforcement and/or modification (What to do when things go wrong after the divorce)
The "final" divorce or child custody order has been signed by the judge. What do I do now?Post-decree modification/enforcement usually comes up in one of four ways: (1) One or both of the parties did not do something they agreed they would or he or she is not following the court's final order(s) in one or more respects; (2) the parties themselves come up with an arrangement that differs from what is reflected in black-and-white; (3) a significant change in circumstances has happened; or (4) something crucial is missing from the decree. Looking at No. 1 first, here are some examples of when this may occur: Perhaps one spouse didn't hand over specific items of personal property in a timely manner like they were supposed to. Or maybe they didn't make a reasonable (or any) attempt to refinance the house, car or boat or retitle the property or loan in their name alone as mandated by the judge. Or the spouse ordered to make child support payments to the other parent (usually the primary custodian) never finished filling out the paperwork required to get the garnishment started.
We decided to do something different than what the court order says. Is that OK? Are we going to get in trouble with the judge?As to No. 2, first of all, no, you are not going to get in trouble with the court if the two of you AGREED to do something in variance with one or more terms of a divorce decree, child-custody support order or other family court final order. Surprisingly often I find that formerly married or otherwise "together" parents decide on a different parenting-time schedule or even a different custody arrangement than what the judge decided or you previously agreed to, whether in a courtroom hearing or a mediation or conciliation court session. The key is that you want your actual conduct to reflect as closely as possible the terms of the order, in case (as too often happens) you and your ex suddenly become less than amicable in your dealings with one another, and one of you decides to no longer abide by your revised agreement. So, step one: Get it in writing, signed and dated and preferably even notarized! Step two: Ask the court to amend or revise the order to better reflect reality.
What if through no fault of my own, things have changed and the court order no longer applies in one or more respects?As to No. 3, this happens all the time. For example, one of you gets a promotion or demotion and the amount of your hourly wage or salary changes. Or you or the other party loses their job entirely. Or you or they move out of state. Any of these events would be cause for a modification of decree or other court order, as long as the changed circumstance is "substantial and continuing." Arizona Revised Statutes ? 25-503(E). In the case of child support, for example, courts will explore modifying the order only if the amount paid would increase or decrease by at least 15 percent if the change in financial conditions were taken into account. As to No. 4, this most often comes up with 401(k)s and other retirement benefits. I am shocked at how frequently the parties don't get a QDRO (Qualified Domestic Relations Order) written up to address these funds, as required by law prior to payout. It doesn't HAVE to occur before the divorce is final, but do NOT wait until the employee spouse retires!
Some final thoughtsSeveral of the possible issues that may come up after the ink is dry on the divorce decree or other family court order are addressed in other legal guides I have published on avvo.com, particularly ones on child support, QDROs and relocation. Certainly take a look at these and any other sources of information you can find on the applicable topic(s). Then, I would strongly encourage you to consult with and secure legal representation from a lawyer who has considerable experience and expertise with post-decree work. Best of luck!
Legal disclaimerThis legal guide should not be construed as formal legal advice or the formation of a lawyer/client relationship.
Additional resources provided by the author
- Title 25 of the Arizona Revised Statutes (especially look at Chapter 5, Family Support Duties, 25-500 to 25-685)
- Arizona Revised Statutes § 25-503(E) (modifying child support)
- Arizona Revised Statutes § 25-327 (modifying spousal maintenance, child support and/or property division)
- Arizona Revised Statutes § 25-411 (modifying a custody decree)
- Joan M. Bundy, family law attorney