How Often Do You See Requests For A Post-Decree Action After A Divorce?
We see requests for post-decree action after a divorce often. A Petition to Modify part of a divorce decree, a custody decree, or a paternity decree is very common.
All kinds of Decrees can be modified. Custody Decrees, Visitation Decrees, Divorce Decrees, and Paternity Decrees can all be modified.
What Are The Reasons That Someone Might Seek An Action For After A Decree Has Been Finalized?
There are child related reasons, and then there are financial reasons to seek a modification after a decree has been finalized.
The most typical child related reasons are to change custody, change the parenting plan (i.e. the specific orders governing the parties parenting decisions) and to change parent time.
One also might file a petition to modify the decree, to allow them to relocate further away, and still allow visitation for the remaining party.
One might seek to modify the decree to require supervision of the other parent’s time, or to require additional restrictions, or additional restraining orders governing a parent’s behavior. Nevertheless, those restraining orders need to be in the best interest of the children.
On the financial side of things, one might seek to modify alimony or child support either to increase, reduce, eliminate, raise, or lower those obligations. Those would be the most typical examples.
What Is The Legal Basis Needed To Modify A Decree?
For financial issues, the main legal basis to modify a portion of the decree is that there needs to be a “substantial and material change in circumstances” from the date the decree entered.
For example, if one party has been ordered to pay the other party alimony and they lose their job, or become disabled; or some other change that reduces their ability to earn occurs, then they can ask the court to re-analyze alimony to account for the new circumstances.
If a recipient spouse has a change of circumstances, they may do the same.
For example, if they become disabled, or if their earning situation decreases and they are in greater need of alimony due to unforeseen circumstances, then the court can also reconsider it. If the party’s income changes, then child support would also be changed.
There is no certain waiting period after a divorce decree is finalized before one can apply for a modification, but the closer the petition to modify is filed after the original decree is entered, then the changed circumstances likely will have to be stronger, or more compelling.
If a change to custody, the parenting plan, or visitation is being requested; then in addition to showing a substantial and material change in circumstances, the party requesting the modification must also show that what they are requesting is in the best interest of the children.
Can The Division Of Property In Debt Decree Be Modified?
Theoretically, division of property can be modified, but it is extremely rare for the court to modify its orders regarding division of property or debt.
Debt may be easier for the Court to reallocate; however, neither one is often modified. I have very rarely seen a petition to modify property division, or debt division.
If An Asset Was Omitted In A Divorce, Can The Divorce Decree Then Be Modified?
It depends on the reason why it was missing, or omitted in a divorce. If one side hid an asset to the point that it was fraud, then that might be grounds to set aside the entire decree.
If the both parties simply forgot an asset, then the court will likely not set aside the decree, and may choose simply to weigh in for the first time on that particular asset, or debt.
However, if attorneys are involved on both sides, the good attorneys will try to cover a situation of missing assets, or debts by putting a “catch-all” provision in the stipulation, or in the final decree saying something like “any property not listed herein would be awarded to the party who possesses it,” or “any debt not awarded herein will be borne by the party in whose name the debt is.” These sorts of “catch all” provisions are often used.
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