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New York Family Law Attorneys
"Matrimonial and family law is our only business at Mangi & Graham."
Family Lawyers Assisting in the Enforcement and Modification of Divorce Agreements
Just when you thought your divorce was done and over, you may very well find yourself being pulled back into Supreme Court to address unresolved issues from your prior divorce, to enforce provisions of the divorce that have not been complied with, or to modify something that was resolved but needs to be addressed due to a change of circumstances. For any one of these reasons, you may find yourself back in Supreme Court on a post-divorce action.
Enforcement proceedings arise where a claim is made that somebody is either unable or unwilling to comply with a provision of the judgment of divorce. Like all post-divorce actions, such actions are brought before the court by the filing of an order to show cause under the same caption and index number as the original divorce action, thus saving the cost of a brand new index number. For that reason, a post-divorce action should be brought in the county in which the original judgment of divorce was granted. When clients are considering whether it would be appropriate to bring such a motion, a person should consider the financial cost associated with bringing the motion and the possible eventual hearing that may be required against the financial or other benefit of obtaining what you were entitled to under the divorce but were denied. The hallways of the Court are littered with post-divorce actions that were brought “on principal” and eventually cost the moving party far greater than if matters were simply left alone. In some instances, however, such as issues involving children, such a financial analysis is not possible.
Enforcement proceedings may also be brought by seeking to hold the non-compliant party in contempt of court, threatening incarceration unless they comply. This is often a very effective way for achieving compliance with an order where the party is able to comply but is unwilling to do so. The moving party very often is also awarded counsel fees for having to bring the motion in the first place. Such motions, however, require the moving party to have exhausted all other non-drastic remedies prior to seeking contempt, unless they can demonstrate that such other less drastic remedies would be unsuccessful. Parities who find themselves facing contempt should take it very seriously, as the outcome could be incarceration for up to six months for each instance of contempt.
When a client wishes to modify a prior provision of a stipulation of settlement or judgment of divorce, a lot depends upon whether they resolved their divorce by stipulation or hearing, and whether the thing they are seeking to modify has to do with child support.
When seeking to modify most provisions of a divorce judgment that was rendered after a hearing, a party is obligated to demonstrate a significant change of circumstances to justify changing the prior decision of the Court. Where that judgment of divorce, however, is based upon a marital settlement agreement (either a Separation Agreement or Stipulation of Settlement), the party seeking the modification must also prove that the alleged significant change of circumstances was also unanticipated.
The exception to the above involves the issue of child support. The Domestic Relations law now provides that, in addition to the basis for modification enumerated above, a client can also seek a modification of a prior order or stipulation regarding child support where the stipulation or order occurred after a specific date in 2010 and where either three years have passed or the income of one of the parties has changed by more than 15percent. Under this new basis, if a party is seeking a downward modification of child support based upon a fifteen percent or more drop in his or her income, that person must also demonstrate that the drop in income was not voluntary or caused by the actions of the party, and that they have diligently sought to regain employmentcommensurate with their prior earning history.
This is a treacherous area of law for a person to attempt on their own without the assistance of an experienced attorney, and we are extremely qualified to represent you in such areas, as we have repeatedly lectured in the areas of child support to other attorneys for the Nassau County Bar Association.
Contact us to receive a free consultation with one of our Westbury family lawyers and to discuss how you would like to enforce or modify your divorce agreement.