San Diego Post-Judgement Modifications Lawyer
Post-judgment or post-order modifications are an important and often utilized method to change an order or divorce judgment to more favorable terms for one party. Our firm has significant experience in handling cases after a judgment is entered and one party wishes to reconfigure the terms. Often, significant planning is involved to ensure success. Preparing a “discovery plan” to gather information, developing a strategy to submit pleadings that have a resounding effect with the court, and negotiating effectively are all important aspects of succeeding in post-judgment Request for Order motions
Post-judgment or post-order modification motions apply to a wide variety of family law issues, including:
- Modification of permanent alimony or spousal support
- Modification of child support in a paternity judgment
- Modification of child support in a divorce judgment
- Modifying a temporary order for spousal or child support
- Modification of an order for payment of certain community debts or obligations
- Modifying a child custody and visitation order within a divorce judgment, paternity judgment, or temporary order in any case including domestic violence matter
The process to modify an order or judgment must be completely understood by the party wishing to modify the order before they file a motion. This is because the procedures to modify a judgment are very concise and if done incorrectly, the court will deny the request. Also, parties wishing to modify an order must understand that the presumption for the court will be to not allow modification. From the court’s perspective, they will need to see some strong evidence to warrant modification.
The Changed Circumstances Requirement
An essential component to modifying any order or judgment is showing there has been a “changed circumstance” sufficient to warrant modifying a set order or judgment. There are varying degrees of the change required and a host of variables that will weigh into whether a court will ultimately modify a judgment. While there is no formal definition of what constitutes a change of circumstances, some courts may consider the following a change of circumstances that may qualify for a court ordered modification:
- Relocation (especially to another state)
- Loss of job or increase or decrease in earnings
- Unsuitable environment for children
- Unforeseen expenses, including medical expenses
- Drug or alcohol use or abuse
For example, in visitation orders for a child, the moving party does not necessarily have to show any changed circumstance to simply modify the visitation schedule. To change custody or modify a custody schedule, however, the moving party has to show either a change of circumstances or significantly changed circumstances to modify the order, depending on what the parties’ current order says. Overall, a moving party’s alleged changed circumstances completely depends on the facts of the case and every case always presents unique facts.
Procedure to Modify Orders and Judgments
Orders and judgments are modified after a hearing or by stipulation if the parties have an agreement as to the terms of modification before a hearing takes place. When a party wishes to try and modify an order, he or she files a Request for Order motion, which is a request for hearing that is filed with the court clerk and a hearing date is set. The opposing party must be given the notice and opportunity that a hearing is going to take place by being provided “service” with the Request for Order. The responding party should then file a response to the motion, providing the court with their version of the facts and arguments as to why the judgment or order should not be modified by the family court. At the hearing, the court will entertain oral testimony, if requested, and/or arguments by the attorneys or parties if they represent themselves, and then the court will issue an order.
Discovery in post-judgment motions
Discovery, or information gathering, is a key function of successfully litigating post-judgment cases in many situations. Discovery is available in post-judgment motions only if the court issues an order allowing discovery or the parties reach an agreement allowing discovery. Effective January 1, 2015, parties will be free to initiate post-judgment discovery without having to obtain a court order or the other party’s agreement. Discovery methods include depositions, subpoenas to financial institutions including banks, sending demands for documents, sending special interrogatories, and so forth. Our attorneys are experts in discovery matters.
Modification of Child Support Orders and Judgments
Child support orders and judgments are one of the few family law issues that a party seeking modification does not have to show any change of circumstances to modify the order. Child support orders can always be modified at any time to the California “Guideline” amount, upon request by the receiving party or the Department of Child Support Services (DCSS). The parent that pays child support can also request modification to the Guideline amount anytime; however, it is not assured that the paying party will receive an order for the Guideline order upon request. There is one situation where the paying party will not be successful in downward modifying a child support order. That is in the circumstance where the party paying child support agreed previously to an above-Guideline child support order. In those situations, the courts in the San Diego Family Law Division will likely deny a request to modify.
Modification of Temporary Spousal Support Orders
During the pendency of a divorce, legal separation, or annulment case, the court has the ability in San Diego County cases to order temporary alimony. When alimony is ordered pendente lite, which means temporarily during a case, such an order is based on the requesting party’s need and the opposing party’s ability to pay (i.e. income). These temporary alimony orders can be modified upon a showing that either the supported party’s needs have increased or the supporting party’s ability to pay have increased since the entry of the original order.
Modification of Child Custody Orders
Child custody and visitations orders are very commonly modified in family court in San Diego. There are often a plethora of changes that occurs within a family structure after an initial order or judgment for custody is entered. Parties remarry, children get older and change schools, children participate in different activities, and people move around all the time. There are thousands of other possible changes that may occur within a family after a judgment, which may be sufficient to modify a custody order. Parties seeking to modify custody orders file a Request for Order and a hearing date and a “Family Court Services” counseling session is scheduled.
Modification of Other Orders and Judgments
There are no limitations as to what a party can request to modify from a divorce or paternity judgment. However, there are certainly limitations to what the court will modify. The first step to determine whether a court might make a modification to a judgment is to look at the terms of the judgment. Sometimes, a judgment may say certain issues (such as spousal support) are non-modifiable. Second, a determination must be made as to whether the issue is one which the court can even entertain a motion to modify. For example, when parties agree to divide their community property in a certain way, those agreements, once they have been accepted by the court and made into a judgment, are not modifiable.
Post-Judgment Enforcement Proceedings & Collection
It is often necessary to enforce court orders because the other party is not in compliance, is late or in default of court orders. In these situations, you need a competent, qualified attorney to represent your interests. Certain examples where post-judgment enforcement proceedings may be necessary include:
- Failure to pay child support
- Failure to reimburse for healthcare or childcare expenses
- Failure to pay spousal support
- Failure to abide by child custody and visitation orders
- Failure to comply with division of property and/or debt orders
- Failure to cooperate with deferred sale of family residence orders
- Failure to make equalization, balloon, or buyout payments
- Failure to comply with life insurance maintenance orders
- Adjudication and collection of arrears
Our experienced attorneys will not only help you enforce court orders, we will help you collect on your family law judgment. There are many legal tools our attorneys utilize to force compliance with court orders including filing requests for sanctions and contempt, filing and recording liens, garnishing wages, and levying accounts. In most cases, interest accrues on unpaid judgments.
Our attorneys have experience with enforcement proceedings and collecting on family law judgments, and have structured fee agreements with clients to meet their needs. In certain circumstances, we offer a “contingency” fee arrangement, where the client pays no up front attorney fees. These arrangements are subject to the California State Bar Rules of Conduct concerning contingency fee arrangements involving family law matters, and may or may not be applicable to your case.
In other situations, you may be able to apply for reimbursement for attorney fees based on the other party’s breach of your agreement or violation of a court order. In those situations, your attorney at Wilkinson & Finkbeiner, LLP will vigorously fight for your right to reimbursement.
Contact a San Diego Post-Divorce Modification Attorney
For further information or to discuss your child support modification or child custody modification, as well as any other modification issues, we invite you to schedule a free confidential consultation with an experienced San Diego post-divorce modification attorney by calling us at 619-284-4113, e-mailing us, visiting us, or filling out our intake form on our Contact Us page. The parking and confidential consultation are free.