POST JUDGMENT MODIFICATION
What is a post judgment action?
After you are divorced, there are many circumstances that may arise which could require you to return to Court. Some of these circumstances could never have been foreseen at the time of the divorce. Actions commenced subsequent to the entry of a final judgment of divorce to enforce or modify a party’s rights under a Judgment of Divorce are called “Post Judgment” actions.
If your former spouse is not complying with the terms of your Judgment of Divorce, or if certain conditions have been met which entitle you to seek a modification of the terms of your Judgment of Divorce, you may have grounds to commence a post judgment action against your former spouse. The proper venue for commencing the action is dependent upon the nature of request.
It is important to consult with your attorney prior to commencing a post judgment action to determine the appropriate mechanism by which to enforce your rights. Your attorney will need to review your Judgment of Divorce, any separation agreements or stipulations that were incorporated into your Judgment of Divorce, and any Orders issued by a Court following the Judgment of Divorce. After reviewing these documents, your attorney can advise you as to the most effective – and cost-efficient – way to obtain the relief you are seeking.
Where do I file – Family Court or Supreme Court?
If the terms of the Judgment of Divorce which are being violated are related to child support, maintenance, child custody, or visitation, you may choose to file a petition in Family Court (a “Violation Petition”) or you may file a motion in Supreme Court (the Court which issued your Judgment of Divorce – a “Notice of Motion” or “Order to Show Cause”), depending on the terms of your Judgment of Divorce. The Family Court and Supreme Court both have jurisdiction to hear post judgment matters relating to support, custody, and visitation.
Only the Supreme Court has jurisdiction to entertain a post-judgment action relating to equitable distribution or any other provisions of your Judgment of Divorce not relating to child support or maintenance.
We are experienced in filing motions and appearing in both Family and Supreme Courts and can assist you in determining the appropriate venue in which to file your petition or motion.
Modification of child support and maintenance – grounds
Even if the terms of your Judgment of Divorce are not being violated, you may have grounds to modify the child support or maintenance terms of your Judgment of Divorce.
In 2010, the Domestic Relations Law and Family Court Act were amended to provide new bases upon which child support may be modified. Under current law, either party may seek to modify the child support obligation based upon the following circumstances (unless the parties have waived these modification events in a validly executed agreement between the parties):
• the passage of three years since the order was entered, last modified, or adjusted; or
• a 15% change (upward or downward) in either party’s income since the order was entered, last modified or adjusted; or
• a “substantial change in circumstances” as defined in New York Law.
Courts are also empowered to modify a party’s maintenance obligation under two circumstances:
• where the maintenance obligation sought to be modified was ordered by the Court, the party seeking to modify the obligation must show that there has been a “substantial change in circumstances”; or
• where the maintenance obligation sought to be modified was agreed to between the parties in a settlement agreement, the party seeking to modify the obligation must show that the continued enforcement of the maintenance provisions would create an “extreme hardship.”
Modification of custody and visitation terms – grounds
A Court is empowered to modify a custody or visitation arrangement where there has been a “substantial change in circumstances” and the modification would serve the best interests of the child. A “substantial change in circumstances” is based on the totality of the circumstances, but some factors to consider may include, but are not limited to, significant changes in the lifestyle of one parent, the custodial parent’s household becoming destabilized, a change in geographic location of either parent, and the child’s preference. None of these factors are controlling; the Court will view the totality of the circumstances before determining that a substantial change has occurred. The Court’s primary consideration is the best interests of the child, whether those interests are being served by the present custody arrangement, and whether the modification would serve the child’s best interests.