Part III - Seeking Modification of Your Divorce Decree

Today I am presenting to you the third in a series of ten postings about divorce decrees. These will all refer to post decree actions. Most of the information is of general applicability but is cited to Indiana law where appropriate.

The most common modifications involve child custody, child support, visitation and alimony. I will discuss child custody, child support and visitation in detail under each of those topics later. For this topic today I will be presenting information about modifications generally.

Although it is possible to modify your divorce decree, and it does get done often, it is still an uphill battle. Do not take lightly the necessity to get the best original decree you can for yourself. Statutory provisions limit the time and manner in which decrees may be modified. You should always have qualified counsel before proceeding through a divorce or seeking to modify the provisions if circumstances have changed.

A change in circumstances after the original divorce decree was entered may require you to modify certain provisions of that decree. The law surrounding a petition to modify is very limited, and you should determine whether a modification is possible on a case-by-case basis. In Indiana there is no longer an action for alimony. Instead it has been woven into child support payment orders. All other modifications are controlled by statute.

If you have obtained a final decree in which you are not satisfied then you should examine all the ways in which you can attack that decree. Filing a petition to modify may not be th best way and could foreclose on other rights you may have. If it has been within 30 days you can file a Notice of Appeal or a Motion to Correct error. You do not want to take these actions without proper assistance. There are many attorneys who do not do appeals because of the very complex and technical nature of them.

If it has been over 30 days then you are limited to seeking a modification. Currently the Indiana Trial Rules allow for a change of judge as of right if you seek to modify your decree. If you have upset the judge or you feel that the judge was biased towards you then you should seek a change of judge.

For particular types of modifications please read my upcoming postings. If you are a pro se litigant I strongly suggest that you seek counsel. If you want to be represented by an attorney and need help selecting one I am available to do that. I can also assist you if you wish to represent yourself.

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Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.

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©2008, 2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Part II - Standing up to your Ex-spouse

Today I am presenting to you the second in a series of ten postings about divorce decrees. These will all refer to post decree actions. Most of the information is of general applicability but is cited to Indiana law where appropriate.

The last posting in this series discuss the filing of contempt actions. Again, if you are the target of a contempt action then I strongly suggest that you get assistance. If you cannot afford an attorney and want one the court must appoint one to represent you if jail is to be considered an option. Today I will discuss strategy and techniques for you to use to deal with a combative ex-spouse who you may need to file a contempt action against or may be filing one against you.

You should always give the opposing party adequate time to comply before filing a contempt action, but don’t wait too long to file. Failure to file in a timely manner can be viewed by the court as a lack of concern on your part that the court's orders should be followed. Therefore, a contempt action should be filed as soon as practical after the party fails to comply. This demonstrates that you demand compliance and that the orders established by the court are important to you.

Your relationship with the opposing party after the divorce will directly affect your initial actions. If an ex-spouse violates the court order without any complaint then those actions or inaction will probably continue in the future. Any order of the court which is violated is a contemptuous act. Some will appear verbatim in the divorce decree. This may be a child support amount, visitation times or other payments that must be made. Others however must be taken from statute, case law or guidelines. These may be the right to access medical or school records regardless of custodial status, support [as defined by I.C. 35-46-1-1] or provisions of an order that come secondary to a primary act.

One action that it is important to expeditiously file a contempt motion on is visitation issues. Failure to do this may leave your child feeling that you don't care to visit him or her if the other parent has been denying visitation. The most common contempt action is for non-payment of child support. In Boone County Indiana the Title IV-D prosecutor, Jennifer Stogsdill, says the prosecutor's office will not seek enforcement action for child support payments against a mother. This is not uncommon among many jurisdictions. Father's will find it nearly impossible to have a mother held in contempt.

While it is important to stand up for yourself and demand compliance with the court's orders you should not undertake any action that is going to cause conflict, especially anything illegal. If denied visitation never take your child from a home, public location or another party unless the child is in immediate danger. Instead, have your paperwork in hand and call the police. You will likely be told that the court will have to resolve the matter but make sure a report is made and get the officers name.

Unfortunately, certain spouses just refuse to abide by the decree and should go to jail for failure to comply. While this is an unfortunate situation, it is critical to send a message to that spouse that compliance with a court order is necessary and required. When people in the courtroom see the sheriff take a party to jail for contempt, great efforts are made to work out problems between the parties.

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Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.

Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.

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©2008, 2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

Part I - Enforcing Your Divorce Decree

After a break from a Vista induced hard-drive crash, a trial and finally getting the murder charge wrapped up with a plea agreement to three years of probation, I have now returned. Today I am presenting to you the first in a series of ten postings about divorce decrees. These will all refer to post decree actions. Most of the information is of general applicability but is cited to Indiana law where appropriate.

Enforcing Your Divorce Decree

Enforcing a court order can be the most trying element of the divorce process, depending on how the parties feel about each other when it’s over. If you generally have a mutual understanding of cooperation then the first approach should be to directly contact your former spouse and explain the problem. If there is still disagreement then you can seek the use of a mediator who is knowledgeable in this area and can attempt to facilitate agreement among the parties based upon the application of the law.

If the post decree relationship is acrimonious then the enforcement action will likely be headed to court. The formal procedure for getting the court to hear your complaint of a party not complying with a court order is a Motion for Rule to Show Cause. This motion seeks to have the other party found in contempt of court. The party filing the contempt action must show that the opposing party failed to comply with a judgment or order of the court. For this reason it is always necessary to document all divorce decree related actions once the decree is issued.

You should be realistic in your expectations of adherence to the court's orders. If the opposing party lost a job, through no fault of his own, and did not have an income during the time of the missed child support payments, that does not make for a good contempt case. Resolution of this issue will depend on the circumstances surrounding the failure to comply with the decree and the party’s ability to explain the job loss. Likewise a parent who is late for visitation exchange may be technically violating the court's order but you must judge the degree to which it interferes. Bringing a contempt action without justifiable grounds can result in you having to pay opposing counsel's attorney fees and may also cause you to be viewed with disfavor by the judge.

Remember that under a contempt action, often you are asking the court to put the opposing party in jail for failure to comply with the decree. This may be necessary to show the offending party that the obligation must be met but you consider that you are asking to put the other person in jail? Certainly this action can diminish your relationship with your former spouse and also the children if you have any. As you weigh the seriousness of the contempt consider that you may be jailing your children's parent and causing an increase in hostility.

If you decide to go forward with a contempt action it is your responsibility to show that the other person violated a court order. It is likely that a hearing will be set for the matter. You will present your case first and may call witnesses and present documentation if needed. Then the opposing side may cross-examine your witnesses and present his own witnesses and documentation to refute your claims. I suggest that you use assistance in bringing this action. If you are the target of a contempt action then I strongly suggest that you get assistance. If you cannot afford an attorney and want one the court must appoint one to represent you if jail is to be considered an option.

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Make a suggestion for me to write about.

Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.

Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.

Tweet

Subscribe to my child custody updates

* indicates required

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©2008, 2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.