Enforcement & Modification

Enforcement & Modification

After financial discovery is completed in a divorce, there are two options going forward with the case. First, the spouses and their lawyers negotiate and sign an agreement settling the issues in the divorce. Second, the Judge decides the case after a trial. The Judgment of Divorce is always decided by a judge. The case ends after the Judge signs the final Judgment of Divorce and the court files the original document in the County Clerk’s office at the Supreme Court.

Modification

In New York State, the Supreme Court Judge can modify some aspects in the divorce judgment after trial. The issues of Child Custody, Child Visitation, Child Support and Maintenance can be modified by either the Family Court or the Supreme Court only in cases where a spouse can demonstrate to the court that a change in the circumstances has occurred, justifying the requested modification. Examples of changes of a spouse’s situation include; loss of a job, a large inheritance, or when a former spouse is remarried, are such changes in circumstances that form the basis for the court to modify an order of child support or maintenance.

Child Custody Orders can also be modified (changed). For example, when a parent moves to a distant place or where there is some change in the children’s circumstances affecting their best interests.

A judgment of divorce which contains an Order directing a spouse to pay maintenance or support to the other spouse may be modified if one spouse (the recipient spouse) is incapable of being self-supporting or if there is a substantial change of circumstances, and financial hardship.

The support arrears that accumulated under a court Order before a spouse requests the court to modify that order, will not be modified by the court, unless the defaulting spouse can demonstrate a “good cause” for failure to make application to the court for modification of the support order before the arrears have accumulated.

Usually, the equitable distribution of property cannot be modified.

Modification of Marital Agreements

Sometimes it is necessary to seek to modify aspects of marital agreements. For example, child support, child visitation, and child custody are often modified by agreement between the spouses or by a formal application to the court.

Enforcement

When a spouse does not follow a court Order or an order written in a Judgment of Divorce, the Supreme Court and the Family Court can legally enforce such orders. For example, if a parent refuses to pay child support or refuses to divide property as directed by the judgment of divorce, or if a parent refuses to permit visitation of children with the other parent, the courts will issue enforcement orders.

The court can enforce an Order directing a spouse to pay child support and maintenance by granting an Income Deduction Order to garnish the salary or to seize a bank account of the spouse who refuses to pay. The court can enforce Orders for the equitable distribution of assets, or for visitation with children by holding the non-complying spouse in contempt of court resulting in incarceration and imposing fines in order to force that spouse obey the court orders.

Enforcement of Marital Agreements

The most common issues aspects of a marital agreement which spouses seek to enforce are related to child support, spousal maintenance and child custody, especially when a custodial parent wishes to relocate with children to another state or to a distant location.

A matrimonial attorney experienced with enforcement and modification proceedings

If you feel that issues in your case such as child custody, child support, child visitation, or spousal support need to be changed or enforced but you are not sure how to go forward, Ingrid Gherman can help. She has extensive experience with modification and enforcement of court order proceeding in both the Supreme and Family courts. You can schedule a consultation with her by calling (212) 941-0767 or sending the on-line form.