What Is The Process To Modify A Decree Generally?
Similar to initiating a divorce, or custody action, you file a petition with a summons. The petition is called the Petition to Modify. It will set forth a list of the circumstances that have changed since entry of the decree, and what relief the petitioner is seeking, and what is it that they want changed. You file that with the court, and serve it on the other side with the summons, and if they are in state, they will have twenty-one days to file an answer, or they can be defaulted. If they are out of state, it will be thirty days before they could be defaulted.
If they file an Answer within the requisite period, then each side will need to exchange what is known as “initial disclosures,” – their witness lists, and their current exhibits to the extent they know them. Then the parties can engage in “discovery” such as subpoenas, depositions, or interrogatories to find out more information. After a period of discovery, the court will have a pretrial conference, and ask them if they are ready for trial. Before a petition to modify is resolved, the court will typically require at least one round of mediation.
After a petition to modify is filed, and an answer has been filed, either party can file a Motion for Temporary Orders asking the court to award temporary relief between then and final resolution of the case.
Can A Request or Petition To Modify A Decree Be Challenged or Opposed?
Of course, you can oppose a Petition to Modify. To do so, you file an answer responding to, admitting, or denying the allegations contained in the petition. One can also file a Counter-Petition to Modify (a counterclaim) requesting modification as well. You do not have to file a counter-petition, but if you believe that the final orders of the court ought to change, and since we are going to be litigating anyway since the other side has already filed a petition to modify, one might think to themselves, “I might as well request what changes I’ve been hoping for at this time also”. Nevertheless, if served with the petition to modify, one should generally seek the advice of an attorney to represent them in the case. You do not have to do so, but representing yourself in these kinds of cases is difficult. The first order of business is to ensure (preferably with the assistance of an attorney) that an answer to the petition to modify is filed so that you are not “defaulted.”
Does The Same Judge Who Handled The Decree Handle The Modification As Well?
Most often the judge assigned to the divorce, or custody matter will also handle the modification unless (a) that judge retires, moves, or leaves the bench; or (b) jurisdiction or venue changes to a different location.
What Is The General Timeline For A Request For Modification To Go Through?
It does not have to take a long time, but it often can. If the parties mediate their dispute early, and are able to reach an agreement, then a modification case can last for the matter of weeks. Nevertheless, if the full range of discovery is needed (such as subpoenas, depositions, interrogatories, requests for admissions, etc.), and if there are other hearings that are needed, like motions for temporary orders, then the case can drag on for a while. In recent years, rules of procedure have been adjusted to prevent cases from lasting much longer than a year, but that can still happen. Generally, once discovery is closed, in other words, once you are no longer allowed to perform any discovery due to discovery cut-off deadlines, then the court is going to start aggressively pushing the case to mediation, or trial. Discovery generally closes anywhere from one-hundred and eighty to two-hundred and forty days after the answer to the petition to modify is filed.
Why Is It A Good Idea To Retain An Attorney For A Modification?
Parties can litigate by themselves, but that is never recommended. Litigation is complicated. If you fail to meet deadlines, or if you fail to take advantage of the rules of the procedure, or the rules of evidence, you can substantially harm your case. So yes, absolutely, it is a good idea to retain an attorney who is experienced as a family law lawyer, and a litigator. Some attorneys promise that they can resolve the case quickly, and inexpensively, and they push for mediation very quickly. That can be a good thing, but if the attorney that you hire lacks trial skills, and is unwilling to proceed with your case if mediation fails, they might end up pushing a party to settle for less than what they could reasonably expect by moving the case forward to trial.
Mediation is a good thing, and it has been beneficial for the legal community. However, many attorneys have gone to trial so infrequently, or they have just failed to develop trial skills (because they push every case to mediation) so they feel uncomfortable taking advantage of the rules of procedure, and the rules of evidence and what can be accomplished at trial. Sometimes they sell their clients short by pressuring them to settle, even if they could have done much better in trial. For those reasons not only should you have an attorney who is experience not only in mediation and the “short game”, but who also has significant trial experience so that they do not develop a “one-size-fits-all” mentality.