Post-Decree Litigation

For some people, the journalization of a decree of divorce or dissolution may mark the end of their case. In reality, though, most cases do not end there – especially when spousal support or minor children are involved. Many common life changes, such as finding a new job, moving or getting remarried, may require the modification of a decree.

An attorney from Phyllis G. Bossin Co., L.P.A., can help. Our law firm represents individuals and families in Hamilton and the surrounding counties of Ohio in post-decree litigation and modifications.

What post-decree remedies are available? It is important to note that the division of property is not modifiable once a divorce has been finalized. There is an exception, however, when parties agree in their petition for dissolution of marriage and separation agreement to make their property division modifiable by agreement. In other words, they would then be permitted to submit an agreed entry modifying their property division. This exception does not create the right to ask the court to modify the property division, only to approve an agreed-upon modification. The most common post-decree issues are related to the modification of spousal and/or child support, the modification of parental rights or custody, the right of one party to relocate and contempt for noncompliance.

Spousal support modification. In some cases, spousal support awards are subject to modification upon a showing of change of circumstances — Ohio Revised Code § 3105.18. Commonly, a party paying support may seek to terminate an existing award on the basis that their ex-spouse is now cohabiting in a new relationship or remarried depending on the express language of their decree of divorce or dissolution. The separation agreement will also spell out what other circumstances might be considered for a modification of spousal support, such as job loss or disability. A successful modification almost always requires extensive evidence and legal analysis.

Child support modification. The modification of a child support order is probably the most commonly sought post-decree relief. Child support can be modified upon a showing of change of circumstances, which can include factors such as a change in earnings, the loss of employment, a change in the parenting schedule, changes in the child care arrangements, disability of one of the parents or a change in the child’s needs. The party seeking modification of the current order has the burden of proof. Alternatively, any factor that results in a deviation of more than 10 percent to the calculated amount of child support may automatically qualify as a change of circumstances for the purpose of modification — Ohio Revised Code § 3119.79. Whether a party is seeking to present or defend a proposed modification, having skilled representation is important.

Modification of parental rights or custody. In order to terminate a shared parenting plan or to change the allocation of parental rights and responsibilities, a change of circumstances is required. However, parties can seek to modify the terms of their shared parenting plan, such as where a child attends school or what the time allocation should be, by demonstrating that such a change is in the best interests of the child. If one parent is the residential parent and legal custodian and the other parent seeks to change custody, the court will look to several statutory factors in determining whether these requirements are met — Ohio Revised Code § 3109.04. Depending on the age of the children, many parenting orders will need to be modified at some point during the children’s minority. Unfortunately, in many situations, post-decree disputes become just as complex and high-conflict as the original parenting determination. Most shared parenting plans will contain a mediation requirement, such that the parties must attempt to resolve these issues with a mediator prior to filing a motion with the court.

Relocation. What happens when a parent with a shared parenting plan or a custodial parent wants to move out of their current jurisdiction for a job offer or remarriage? A residential parent and legal custodian must file a Notice of Intent to Relocate with the court. At that point, the court can determine, either through a motion filed by the other parent or on its own, what new schedule might be in the best interests of the children. The question then becomes whether a parent who has sole custody can relocate without the permission of the court. There are several cases that have addressed this issue. The holdings in these cases are that unless there is an additional prohibition from the parent leaving the jurisdiction without a court order or consent of the other side, the parent does not need the court’s permission to leave. The court’s sole authority in this situation is to determine whether the parenting time arrangements need to be changed. Virtually all shared parenting plans provide that neither parent can leave the jurisdiction and establish residence for the children elsewhere without agreement of the parties or a court order. The plans always state where a parent can and cannot move. Often custodial orders issued by courts have the same prohibition against moving.

Thus, if a parent wishes to relocate, that parent must file a motion for permission to do so. Relocation is often an extraordinarily complex and contentious issue that requires litigation to resolve. Obtaining permission to relocate is always an uphill battle. These cases are often difficult to win. A motion for permission to relocate is often met with a motion to change custody filed by the other parent. However, when one parent is the custodial parent, the test that the court should be using is, assuming that the parent moves, what parenting arrangements would be in the best interests of the child. However, courts often simply assume that the children should have both parents living in the same city. Thus, winning these cases is very difficult. Psychologists are almost always involved in performing evaluations and making recommendations in these cases. During the trial, the court will attempt to determine what arrangement is in the best interest of the child(ren) based on many factors, including the child’s relationship with each party, the relevant parenting history, the distance of the move, proximity to extended family, the reason for the move, the new community and more — Ohio Revised Code § 3109.051(G).

Contempt proceedings. When a party does not comply with a court order, a contempt proceeding might become necessary. Because contempt proceedings are “quasi criminal,” a party found in contempt can be ordered to pay a fine, cover the other party’s attorney fees or even sentenced to jail if they continue their noncompliance. They are most commonly sought in post-decree cases when a party fails to transfer titles or assets, fails to adhere to a parenting order, or fails to pay support or reimburse expenses. Because many cases are characterized by repeated, ongoing violations of court orders, it is important to have an attorney who understands how and when to seek enforcement.

At Phyllis G. Bossin Co., L.P.A., our lawyers have extensive experience in all aspects of post-decree modifications and litigation. To learn more or to set up a consultation, contact our office in Cincinnati at 513-421-4420 or use our online contact form.

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