If you are not content with your divorce case's final judgment, you have the right to file a motion for a post-judgment modification of the existing orders. Some of the most common post-judgment matters in California include but are not limited to child custody and visitation, spousal or child support modification, enforcement of specific judgment terms, and adjudication of omitted assets. However, for your modification/enforcement motion to succeed, you must show a material change in circumstances. At Los Angeles Divorce Lawyer, we help clients in Los Angeles take the required court action to modify or enforce a judgment. Below is an overview of post-judgment enforcement and modification in California.
What is Post Judgment Enforcement / Modification?
Post-judgment enforcement or modification are terms used to refer to the legal actions taken following a court judgment with an attempt to enforce or modify the final judgment made by the court. If one party fails to uphold their end of the final decision made by the court, the other party can move to court to seek judgment modification or enforcement. However, there are circumstances where a party may not need to take any legal action as the family court still has the right to make modifications as situations change to ensure they maintain the best interest of the children involved.
Traditional Litigation in Family Law
When using this as a divorce method, the jury decides on how the parties involved will handle situations in the future, and this marks the end of their official marriage and the litigation case. This agreement binds both parties legally, and every party must honor it. Spousal support, child support, child custody, and fair division of property are some of the agreements made by the court.
California law refers to the two parties in this case as:
- The judgment debtor — The person who lost and owed property or money. The person who is expected to pay the other party.
- The judgment creditor — The person who wins during the judgment/ The party the court decides should receive money
Note that this method is not only used when seeking modification or enforcement of money-related issues; it can also be used in issues like failing to uphold particular restraints or overstepping child visitation.
Do Enforcement and Modification Mean the Same?
Enforcement and modification do not mean the same. Enforcement is a term used to refer to a decision that the court makes after judgment to have a person make up for something they ought to have done but have failed to do or prevent them from practicing something they have been warned against. On the other hand, modification refers to the jurisdiction of the court to modify or make changes in previously made decisions based on the changing situations and the best interest of the involved parties. This mainly focuses on the best interest of the children. It mainly revolves around child custody, child support, and other topics revolving around the children's well-being.
In California family law, modification is more common than enforcement.
Enforcement and Modification Examples
Below are examples of post-judgment enforcement:
- If one person is visiting a spouse or child against the mandated agreement by the court. The court then obligates the person to comply with the agreement by issuing certain non-monetary conditions or terms like imprisonment or revoked rights to rectify the behavior.
- If a person fails to pay the mandated child support, the other person may take legal action against them. The court may order the lacking person to pay a certain amount of money to the other person.
A modification example is when the court changes the child custody arrangements or the alimony, spousal support, or the amount of money set for child support. As the court makes that decision, their primary focus is on the children's best interest. Still, the court also considers any unforeseen changes that may affect the paying, like a career change.
The Changed Circumstances Requirement
For a court to consider modifying any judgment or order, there must be enough evidence showing a change in circumstances that warrant modifying a judgment or set order. Certain degrees of change must be offered, and a host of variables determine if the court will make a judgment modification. Although there is no legal definition of a change that may warrant a modification, below are some of the changes that may qualify for a court to make modifications.
- Alcohol or drug abuse
- Unforeseen expenses like medical expenses
- Unsuitable environment for kids
- Increase or decrease in earnings or loss of job
- Relocation to a different state
Procedure to Modify Judgment and Orders
Modifying the court’s judgment or orders occurs by stipulation or after a hearing if both parties agree to the modification terms. When one party tries to modify a judgment, they file a request for an order motion, a hearing is filed with the court’s clerk, and they set a hearing date. The opposing party is provided with the “service” with the request for judgment to notify them that a hearing will take place. The opposing party should then file a response to the motion, presenting their facts and arguments on why the family court should not modify the judgment. During the hearing, the court will allow oral testimonies and arguments from each party and their attorneys, after which the court will issue an order.
Practices for Collecting Voluntarily Without Involving the Court
Most court decisions are often about one party owing the other party money. But that doesn’t mean that the debtor will pay the stated amount. As a creditor, you can choose whether or not you want to involve the court in modifying or enforcing your court decision. Let us first look at each party’s responsibilities.
- The judgment creditor/winning party is responsible for collecting the judgment after the court decides what the judgment debtor/owing party owes them.
- If the owing party fails to release the money within 30 days after the judgment, the winning party may decide to:
- Collect the money from the debtor voluntarily
- Seek legal action to collect their money. The court enforces collection without legal action or automatically.
- As the debtor, you are supposed to act in accordance with the original decision made by the court. If you fail to comply with the child custody, visitation, and payments, you may be ordered back to court in order to impose the enforcement.
The most recommended way for a creditor to take judgment from the debtor is by the debtor doing it voluntarily. If the creditor decides to follow the legal way, the law requires the creditor to reach out to the debtor to know where to mail payment. The creditor can choose to receive less judgment if the debtor promises to make regular payments or pays sooner than expected. If both the creditor and the debtor should develop a payment plan, they are supposed to sign a particular form and file it with the California court.
It is also advisable that both parties communicate through writing. This is mainly because the chances of arguing or having stressful conversations are low, and there will be a paper trail of decisions. If the debtor fails to pay as soon as possible or fails to pay as agreed, the creditor can file specific consequences like:
- Seeking compensation for costs incurred during the collection
- Informing the debtor that the judgment has an increment rate of 10 percent every year, hence the amount owed can increase daily.
- Informing the debtor that unpaid judgment can affect their credit card since credit reporting agencies have public records like the judgment roll that indicates the details of the debtor who has not paid.
The creditor can also request other actions if the debtor still makes no payment on judgment. These additional actions can include:
- A safe deposit box or levy on the bank account of the debtor
- Suspension of the debtor’s professional licenses like driving license or real estate
- A wage garnishment to retrieve money from the debtor, their domestic partner, or spouse.
- Lien, which according to the law, means the right to possess another person’s property/possession until they clear their debt
The law requires the creditor to avoid any illegal tactics while collecting a judgment from the creditor. The law protects debtors from abusive or unfair ways of managing money regardless of their reasons for not clearing the debt.
However, any decision involving money judgment, for instance, spousal support, alimony, or child support, expires automatically after ten years following the initial judgment day. But the creditor can file a formal request for the judgment renewal to prevent the expiring.
Spousal Support or Child Support Enforcement
If the creditor cannot voluntarily collect the judgment from the debtor, they can return the case to family court. If there is enough evidence and the court discovers that the debtor has areas of the mandated judgment, the court may use either of the following methods to enforce payment:
- Sending the debtor to jail is the most extreme action that the court can take. Still, the court has to determine that the debtor is in contempt (for instance, intentionally refusing to pay despite having the money, refusing to be employed, or choosing underemployment with the intent to refuse to pay the debt. If the debtor is put in jail, they can pay the owed amount to seek release. (known as purging contempt).
- Traditional debt collection —The court may decide to use a debtor collector to collect a debt from the debtor. However, the debtor must have enough assets or money that the collectors can seize and clear the debt. If the debtor’s assets cannot clear the debt when seized, the court remains with one option which is to send the debtor to jail
The family attorney and the prosecuting attorney have the right to decide the most appropriate way to enforce the debtor in making the payments in full.
Modification of Temporary Spousal Support Orders
When the divorce process is underway, the court can order temporary alimony. After the court has ordered alimony (pendente lite), meaning the state of temporarily in a case like an order based on requesting the needs of a party and the other party’s income. However, modification of these temporary orders can only be made if the supported party's needs have increased or the supporting party has increased their ability to pay.
Modifications of Child Agreement
Not all cases brought to the family law are financially related. Even parties who may not have issues collecting money from the owing party may want to change the children's visitation or custody decision. In this case, they are not seeking enforcement; instead, they seek a modification.
Modifications are easy to change, unlike judgment enforcement. However, the party seeking improvement must indicate enough reasons and proof. Note that this proof does not need to show that either party violated the set rules or is faulty, instead, the proof should show that there have been some significant changes in one or both parties that may affect the court’s final decision. Although modification can happen in different situations, the most common topics include:
- Child custody — This is among the most complex cases. The person who wants a modification to this must show beyond reasonable doubt that there have been significant changes in either or both lives to warrant a change in child custody. The court has to put the best interest of the child first.
- Child visitation — In this case, the party that wants to change how or when children's visitation can occur should also prove the changes in either of their lives that warrant a change in child visitation rights.
- Dividing property and assets — Although dividing property and assets is a common topic in divorce, it is uncommon to come up with modification because couples usually have decided how to divide their shared assets and property. For this type of modification to occur, one person has to prove a significant change in one or both of their lives.
- Alimony or spousal support — The party owing money may seek to owe less financial money to the creditor, but they must show how and why that change should be made. The court cannot increase the money the debtor owes the other party not unless there is sufficient evidence to prove change and reasons why it should happen.
Modifications of Child Support Orders and Judgments
This is among the few orders in family law that the person seeking modification does not have to show a change of circumstances. Child support judgment can be modified upon request by the Department of Child Support Services or by the receiving party to the California Guideline amount. Note that the party responsible for paying child support can also request a modification of child support orders to the Guideline amount at any time. Still, it is not guaranteed that they will get an order upon request. The most common citation where the paying party may not be successful in a downward modification of child support order is where the party had previously agreed to an above Guideline child support order.
Modification of Other Judgments and Orders
Each party has a right to request a modification of any judgment or order they feel there is a need to modify; there is no limitation. After a party has requested to modify a divorce judgment, the court will first check the terms of the judgment to determine if they will change. Some judgments include terms like non-modifiable in specific conditions like spousal support. After reviewing the judgment terms, the court will decide if the issue is worth a motion to modify. For instance, if both parties had agreed on how to divide their community property, they cannot be changed once those judgments are submitted to the court.
Post-judgment Enforcement Proceedings and Collection
When one party fails to comply is in default or late of court orders, it is necessary to enforce court orders. In these situations, you need a skilled and experienced lawyer to represent your interest and help you attain justice. Below are examples of situations where post-judgment enforcement may be required:
- Failing to pay spousal support
- Failing to pay child support
- Falling to comply with division of property or debt orders
- Failing to reimburse for child care or healthcare expenses
- Failing to comply with insurance maintenance orders
- Failing to make equalization or buyout payments
- Failing to abide by child visitation and custody orders
- Collection and adjudication of arrears
- Failing to cooperate with the agreed sale of family property
Find a Family Law Attorney Near Me
If you are considering seeking post-judgment enforcement or modification, it is essential to reach out to a skilled and experienced family law attorney to help you navigate your rights and help you seek justice. At Los Angeles Divorce Lawyer, we help clients across Los Angeles understand the law of changing and enforcing orders/judgment in divorce. Our professional legal team has experience handling different kinds of divorce cases and we are ready to help you too. Call us today at 310-695-5212 for a free consultation.
