What You Need to Know About Post-Divorce Modifications and Enforcement

 Posted on May 27, 2022 in Divorce

Going through a divorce can be a difficult process. Dealing with the legal issues involved in the dissolution of a marriage while also addressing financial concerns, making adjustments to living arrangements, and handling the emotional fallout that comes with the end of a long-term relationship can be incredibly stressful. After completing the divorce process, a person will most likely want to move on with their life and put this painful experience behind them. However, there are some situations where issues related to a divorce may arise, and the parties may need to return to court to pursue a modification of their divorce or enforce court orders.

At Weiss-Kunz & Oliver, LLC, our attorneys understand that the last thing most people want after going through a divorce is to once again become embroiled in the legal process. Filing petitions, attending court hearings, and dealing with other legal issues was stressful enough the first time around, and starting this process over may seem overwhelming. However, it may be necessary to deal with new issues that have arisen, and by taking the correct approach, a person can address their concerns and make any adjustments that are necessary. We work to ensure that our clients will be able to pursue modifications based on changes in their lives or take action to enforce their divorce decree when appropriate.

Where Will Modification or Enforcement Cases Be Handled?

The first thing a person will need to understand when addressing post-decree issues is the venue where their case will be heard. If at least 30 days have passed since the decree or judgment was entered, the determination of the court that will address the case will depend on where the parties currently reside. If either party lives in the same county or judicial circuit where they lived prior to their divorce, their case will generally be heard in the court where their original case was handled, although if their children currently reside in a different area, the case may be transferred to the circuit court in that area.

In other situations, proceedings may take place in the court where either party resides. Typically, the party who requests a modification or seeks enforcement of a court order will file a petition in their local circuit court, and the case will be heard in that venue. However, in situations involving child-related issues, a case may be transferred to the circuit court in the county where the child or children primarily reside. If necessary, a person responding to a modification request or enforcement action may object to the venue, and a judge will then determine the appropriate location where the case will be heard.

When Can Child Custody Be Modified?

In many cases, post-divorce modification requests will be related to the allocation of parental responsibilities or parenting time. A parent may believe that a modification is necessary because the other parent has not participated in making decisions about issues such as children’s medical care or education. A person may wish to make adjustments to their parenting time schedule so that they can have additional time with their children or because their schedules have changed. Other changes in the lives of parents or children may require a change, such as an illness that affects a parent’s ability to take care of their children or special needs for children that need to be addressed.

Typically, orders related to the allocation of parental responsibilities cannot be modified within two years after the finalization of a divorce or the entry of a child custody order. However, modifications may be allowed if there is good cause to believe that a child’s physical or mental health is at risk, such as in cases where a parent is believed to have committed domestic abuse. Parenting time may be modified at any time, as long as these changes are necessary and are in the best interests of the children.

Requests to modify child custody will usually need to be based on changes that have affected the parents or children. A parent will need to show that they, their ex-spouse, or their child has experienced a “significant change in circumstances.” However, modifications may be made without a significant change in circumstances if parents agree on the changes, if the changes are considered to be minor, or if the request reflects actual arrangements that the parents have been following for at least six months. In any child custody modification case, a judge will want to make sure that the changes will provide for the children’s best interests.

Modifications Related to Parental Relocation

Some unique issues may need to be addressed in cases involving parental relocation. These situations involve plans by a parent to move with their children to a home that is far enough away from the other parent that changes to child custody may be needed. In general, a parent who has the majority of parenting time or who shares equal amounts of parenting time will be required to notify the other parent when they plan to relocate, and they may need to request a modification if the move will require changes to the allocation of parental responsibilities or parenting time.

If the non-moving parent has no objections, they may sign the relocation notice, and the agreed changes to the couple’s parenting plan may be filed in court. These modifications will typically be approved, as long as a judge agrees that they are in the best interests of the children. However, if the other parent objects to the relocation, a hearing will need to be held to determine whether to approve the relocation request and decide what types of modifications will be made. In these cases, a judge will look at issues such as why a parent is planning to move, why the other parent is objecting to the move, whether either parent has failed to exercise their parental responsibilities, what opportunities for education or other benefits will be available for the children at each location, whether the children will be close to extended family members at each location, and how a parenting plan may be modified to ensure that the children will be able to maintain close and continuing relationships with both parents. 

Modifications to Support Orders

An ex-spouse who pays or receives financial support may believe that modifications to these payments are necessary based on changes in the financial circumstances of them, their ex-spouse, or their children. For example, a parent who pays child support may have lost their job, and they may be concerned about their ability to meet their ongoing obligations.

As with other types of modification requests, a person will need to demonstrate that a substantial change in circumstances has occurred. Changes in financial circumstances often involve a significant increase or decrease in income for either party. However, situations that affect a person’s ongoing needs may also need to be addressed. If a person who pays support experiences health issues that affect their ability to work or require them to pay significant medical expenses, or if a couple’s children have special needs that may require parents to make changes in how they share child-related expenses, these issues may be addressed through a modification request.

It is important to understand that until modifications are made, support obligations will remain in place, and a person will be required to make ongoing payments as required. They will also be required to make up any payments that have been missed, and interest may apply to the amount owed. If a person files a petition requesting a modification based on changes in their financial circumstances, temporary or permanent modifications may be made to the support they pay or receive, and these modifications may be retroactive to the date the petition was filed. Because of this, it is crucial to file a modification request as soon as possible after circumstances arise that affect a person’s financial situation.

In cases involving spousal support, either party may request modifications if necessary. However, most of the time, these requests will be made by the paying party, and they may be based on changes that have affected their ability to pay ongoing support or a belief that support is no longer necessary because the other party is able to support themselves. If the party receiving spousal maintenance remarries or begins cohabitating with a new partner, spousal support will be automatically terminated. However, if spousal support payments were made after they should have ended, the paying party may request a reimbursement of these payments.

Enforcement of Court Orders and Contempt

If one party has failed to meet their obligations or has refused to follow the terms of a divorce or child custody order, the other party can take legal action and ask the court to enforce its orders. There are multiple options for enforcement, and in many cases, a person may file a Petition for Rule to Show Cause, which will ask that the other party be held in contempt of court.

In cases where a person has failed to pay child support or spousal maintenance, a judge may issue orders requiring them to pay any support that is owed, and a wage garnishment order may be created that will automatically deduct payments from the person’s income. If a person is held in contempt for their refusal to pay, they may face consequences such as being placed on probation or the suspension of their driver’s license. A person may even be sentenced to prison for up to six months, although they may be released during certain days and times so that they can work and put the income they earn toward the payments that are owed.

If a parent fails to follow the parenting time schedule in their parenting plan, such as by refusing to allow children to spend time with the other parent when required, they may face a number of consequences. A judge may require a parent to attend a parental education program, pay a cash bond to ensure that they will comply with a child custody order, and/or allow the other parent to make up missed time with their children. A parent may also be required to pay a fine or reimburse the other parent for expenses that were caused by the violation. If a parent is held in contempt for violating a parenting time order, they may be sentenced to probation or time in prison, and their driver’s license may be suspended.

Contact Our DuPage County Post-Decree Modification Lawyers

Pursuing modifications of a divorce decree or responding to modification requests made by an ex-spouse can often be a complex process. Those who need to address these issues or who are concerned about violations of divorce orders by the other party will need to secure legal representation from an experienced lawyer. Our Elmhurst post-divorce modification and enforcement attorneys can help you determine the best course of action in these cases, and we will fight to protect your rights and the best interests of your children. Contact us today at 312-605-4041 to set up a consultation and determine your options for modification or enforcement of your divorce decree.

Source:

https://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=59