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Post Decree-Motion

A post-decree motion or post-judgment motion addresses the agreements that are described in a dissolution of marriage or any other agreement that takes place after a legal dissolution or annulment. Individuals across California file a post-decree motion to address a variety of issues that pertain to an agreement that has been acknowledged in a court of a law. Post-decree motions are legal actions that one takes to address the content of an agreement after a final decree.

A post-decree motion allows both parties involved in an agreement to either enforce the conditions of an agreement and/or the ability to modify the conditions of an agreement. A motion to modify a decree takes place when either party wishes to change the details of an order or divorce decree. The request to modify an agreement requires that the petitioner files a draft explaining how the agreement is either unlawful or how the change of circumstances allows for a modification. For example, if your spouse is awarded alimony until he or she is ‘financially fit’, and your spouse either enters a marriage or obtains a stable job, you may file a motion to modify the provisions in the decree or order to end or reduce the alimony obligations.

On the other hand, either party has the ability to file a post-decree motion to enforce any feature of the divorce decree, final order, or judgment. In the event that an ex-spouse fails to abide by the agreements, the other spouse may file a motion to enforce the conditions. For example, either spouse may file a post-decree motion to collect a debt arising from a spousal or child support agreement. In another instance, either spouse may file a post-decree motion to enforce a provision. For example, either spouse may file a motion to enforce a provision if a spouse fails to abide by child custody or visitation agreements.

In either instance, if you are filing a post-decree motion, it means that certain motions and forms must be submitted to a court. In order to successfully enforce or modify a court order or agreement, you will need to come to an agreement with your spouse and you must be capable of filing the correct paperwork. Failure to work with your ex-spouse can result in a courtroom hearing that will usually require the aid of an attorney who is capable of representing either case. Before entering a courtroom, we highly recommend that you address your disagreement or concern through informal measures. Taking care of the situation outside of a courtroom will save you big bucks and time.

If you are unable to find a solution through mediation or through other informal means, you will most likely be required to settle the dispute in front of a judge. In this case, both parties may require the assistance of a family law attorney who is knowledgeable about divorce laws. Keep in mind that every state provides different remedies for similar situations. To better understand your situation and to establish a game plan that works for your case, you are encouraged to speak with a local state attorney. You may contact the San Diego Divorce Attorney at 858-529-5150. We are ready to hear your case and apply local laws to determine the procedure that is right for you.

Common Post-Decree Motions

As mentioned earlier, a post-decree motion is an attempt to modify or enforce an order or final decree. In most states, most individuals possess the ability to indefinitely modify and/or enforce the regulations of a final divorce decree or other relating legally binding agreements.

Individuals who file a ‘motion to modify’ will typically do so to revisit one or more of the following topics:

  • Alimony, otherwise known as maintenance or spousal support
  • Child custody
  • Child healthcare payments and obligations
  • Child support
  • Child visitation
  • Debt liability

Motions to modify may take place through informal setting. If either party disagrees with a final order or decree they may negotiate through a mediator. Perhaps you are failing to make the full child support payment and you wish to modify the text to allow you more time to make those payments. Your next move should be to discuss the issue with the other person involved in the agreement and address your concerns. Usually, you are able to come to a solution after discussing the issue or after undergoing a mediation procedure. In most cases, individuals are able to handle these cases on their own without the need to enter a courtroom.

Individuals who file a ‘motion to enforce or collect' will do so to enforce one or more of the following:

  • Enforce or collect child support payments
  • Enforce or collect 401k reimbursement as agreed upon
  • Enforce or collect payments that were agreed upon in a divorce decree
  • Enforce or collect financial obligations of either parent to provide for child health care costs
  • Enforce or collect maintenance or spousal support

In contrast, collecting and enforcing certain provisions can be more complicated. First off, if you are looking to file a motion to enforce or collect, it may mean that the other spouse is already unwilling to cooperate. If your spouse is unwilling to work with you, there are ways to enforce the provisions of an agreement. However, it is important to consider that pursuing a collection can be costly for the petitioning party so it is better to discuss your situation with an attorney to determine the best course of action for your specific situation.

Collecting and/or Enforcing Child Support

Child support obligations are mandated under federal and state laws which provide different enforcement methods to ensure the financial obligations are met. Non-custodial parents are ‘in arrears’ or are considered ‘deadbeat parents’ when they owe money on child support or continuously fail to make payments. In this scenario, the providing individual may file a motion to modify the child support order so that the payments align closer to their financial capabilities. However, if the providing party is financially stable and their circumstances have remained the same since the court order, they will be required to pay the debt that is accumulated from failure to pay the monthly or bimonthly child support obligation. If the providing party fails to pay child support there are a number of ways to enforce payments.

On the federal level, the U.S Department of Health and Human Services (DHHS) under the Office of Child Support Enforcement, provides that state authorities can enforce certain regulations to obtain payment. For example, if you owe more than a certain amount of child support, you may be denied the right to a passport or you may have your driver’s license suspended. In other instances, the court may provide a jail sentence if the providing party fails to adhere to the child support order. In most cases, the court acknowledges that jail time is not the best option as it would keep the providing party from paying, but the court may consider jail time as a last resource.

Collecting and/or Enforcing Spousal Support

As with child support debt, debt that arises from alimony cannot be discharged after filing for bankruptcy. This means that once a court order is established the providing party will be required to make payments on the agreed upon dates and for the agreed upon amount. Failure to pay can result in strict limitations that can cause various legal troubles for the ex-spouse. Under state and federal law, state courts and local authorities can assist with enforcing the provisions of a family court order.

Common Methods Used to Enforce Child or Spousal Support Orders

The Child Support Enforcement Act (CSEA) provides different methods in which local agencies can enforce the provisions of a family court order. If the providing party fails to pay a family court order it is usually because the spousal support agreement is no longer suitable for the changing circumstances. Most courts across the United States understand that circumstances may change a day or two after a family court order. For this reason, courts will allow the providing party to petition a motion to modify the family court agreement with an attempt to align the financial obligations with their financial capabilities. When filing a motion to modify a court order, the petitioner will be required to explain how their circumstance has changed and how the change of circumstance has affected their ability to keep up with payments. The court will not place a life-altering burden on honest individuals who looking for a way to balance their expenses.

However, if the providing party is capable of fulfilling the financial obligations of a family court order, they will face certain complications if they fail to keep up with payments. Most states will comply with the Uniform Interstate Family Support Act (UIFSA) which allows courts to enforce the terms and conditions of an agreement even when the order was established in a different state court. For this reason, if you are ‘running away from your obligations’ you will want to consider the following repercussions before you willingly fail to provide a family court order payment.

Through the Child Support Enforcement Act (CSEA) courts may enforce a spousal or child support order using the following methods:

  • Suspending Driver’s License: If you have your license suspended, you will not be capable of operating a motor vehicle. Most individuals use their vehicles for daily commutes. If you have a suspension on your license your commute and other aspects of your life may be affected.
  • Earning assignment or wage garnishment: An earning assignment may not have been placed on your family court order, but if you fail to make certain payments your spouse or other involved individuals may file to place an earning assignment. An earning assignment is a notification that is sent to the providing parties employer. Upon notice, the employer is required to withhold the earnings and send a check or transfer money to the appropriate individual.
  • Liens on a property: If you own a property such as a vehicle or a home, the court may establish a lien on your property which will give your ex-spouse or other individuals the ability to claim a portion of your property. A lien provides that when the property is sold, a portion of the earnings will go to pay off the spousal or child support debt.
  • Report to the Credit Bureaus: Unpaid debts will be reflected in credit bureaus. A reporting will ultimately affect the credit score which may cause complications when filing for a new credit line or mortgage loan.
  • Bank Account Freeze: Courts can also order to have bank accounts frozen if the providing party fails to make certain payments. This will prevent the providing individual from accessing or using their bank accounts.
  • Imprisonment or probation: Sentencing an individual to jail time or probation are methods that are usually there to work as deterrence. The court does not want to send you to jail. In many cases, the court will attempt to work with individuals that undergoing tough financial times. However, if the individual fails to make payments and they are fully capable of making payments, the court will consider jail time or probation. If all other methods are exhausted, the court may use jail time or probation as a last resort.

To learn more about how to collect a spousal support or child support debt, you may visit the California Courts page at http://www.courts.ca.gov/1252.htm

Post-decree motions may be used for a variety of reasons, but are usually filed to modify or enforce an existing agreement or contract. If you are filing a motion to modify or enforce, you are encouraged to speak with an attorney to learn how your case holds up to the law. In most cases, our attorneys will attempt to work with both individuals in efforts to come to an agreement outside of a courtroom. However, we always encounter individuals who are unwilling to cooperate resulting in court motions and petitions. If you require legal assistance or if you would like more information on your case, please contact the San Diego Divorce Attorney at 858-529-5150.

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