The relief people feel when their divorce is settled, especially when it was contentious, is unimaginable. All issues have been addressed, the children are adjusting, and all will move on to happy new normal. Right? Unfortunately, whether it is immediately after your divorce or years down the road, sometimes, an uninvited stranger comes knocking; enter post-judgment litigation.
Post-judgment is when issues arise AFTER a Judgment of Divorce has been signed by a judge, and recorded in the Office of the County Clerk. On occasion, these issues may even arise between the time when a settlement agreement has been signed (or a trial decision has been issued) and the time before the divorce judgment is executed by a judge. These instances are often the most frustrating because it is essentially a state of limbo wherein a party must await the judgment’s execution prior to seeking court intervention.
Parties are often confused about how these post-judgment issues can even arise when the terms of the divorce were agreed upon and set forth in a court order/judgment. Wasn’t the settlement agreement clear? Once signed, don’t both sides have to comply with the terms agreed upon? The answer to the first question is “hopefully.” The answer to the latter is “absolutely.” Unfortunately, as in other areas of our lives, people do not always do what they are supposed to do. In fact, in terms of non-compliance, a party can almost count on the fact that a party who is non-compliant DURING a divorce, will undoubtedly continue such non-compliance after it. A leopard does not change its spots.
The most common forms of post-judgment litigation are contempt/enforcement proceedings and modification proceedings (child support, spousal support, custody, parenting time etc). Most of these proceedings can be initiated in either Supreme or Family Court if the settlement agreement states that these courts have “concurrent jurisdiction.” Other post judgment enforcement issues, involving equitable distribution, must be initiated in Supreme Court.
In connection with contempt issues, a well drafted settlement agreement will undoubtedly have a provision referring to a breach/default regarding agreed upon obligations, and also include an entitlement to an award of counsel fees in the event the movant prevails in a legal proceeding. The further caution in this regard is that the movant must satisfy certain notice requirements to the noncompliant party about the default, and provide time to remedy it prior to seeking judicial intervention. This notice is often specific and it is imperative that a party refers to his/her settlement agreement in this regard. Once an enforcement application is filed, the non-compliant party is subject to numerous consequences, including but not limited to: the issuance of a money judgment, income execution, and even incarceration.
Modification issues either arise in accordance with the settlement terms (ie – an agreement that support will be modified under certain circumstances); or when the movant can demonstrate that there has been an “unanticipated change in circumstances.” This is often seen in proceedings where the movant seeks an upward or downward modification of support or a change in custody or parenting time. In any such case, the movant has the burden of proof to demonstrate such change.
In cases where the parties’ relationship continues to be strained and contentious even after the divorce, it is more likely that post-judgment issues will arise. Clearly, unending court proceedings are not pleasant; are often costly, and are not something most people want to spend their time with. Thus, the importance of forging a cooperative relationship, involving open communication and flexibility with your former spouse cannot be overstated. When this is not possible, the keeping of meticulous notes regarding non-payment and circumstances (ie – missed visitations, communication issues regarding the children, etc) warranting the need for modification, is critical to a successful petition.
Much like a hostile divorce, post judgment litigation may seem endless. In the event your former spouse engages in consistent non-compliance, or incessantly pulls you into court regarding what seems to be frivolous litigation, it may be worth your time and effort to figure out and address what the underlying cause truly is (ie – malice, using the court system as a way to remain close to you).