Post-Judgment Modifications & Enforcement
Once judgment is entered on all issues, the typical civil or criminal case is over. The criminal defendant cannot return to court to modify a guilty verdict and the civil plaintiff cannot return to the jury to increase his award. The only option in these cases for an unsatisfied party is appeal. Family law is unique because it gives the parties an opportunity to return to court to modify previous judgments. After the conclusion of a San Diego family law case, it is not uncommon for circumstances to change. If circumstances have changed so materially, such that the previous judgment no longer fits the needs of the parties, it may be necessary to return to court.
In order to be successful on a motion to modify child custody and visitation, child support and spousal support, you must be able to show a material change in circumstances. Public policy favors the finality of a judgment, especially a support judgment. If parties believe that the judgment can be attacked at any moment for any reason it will be difficult for them to move on from the litigation process. Changes that may be able to meet this “changed circumstances” burden include: changes in employment, illness, a child’s education expenses, one parent moves, and the child’s needs change.
It is important to note that changes in employment that result in an increased need for support or a deceased ability to pay may be closely scrutinized by the court. Parties are not permitted to be intentionally underemployed for the purposes of paying less support or receiving more support. If the judge believes that a party is currently earning under his or her ability, the judge may impute income to that party. This imputed figure is used to calculate the need for support or ability to pay. This may encourage a party to seek employment up to his or her full potential.
Parties may also return to court to enforce an earlier judgment. If one of the parties refuses to pay debts or follow other orders, the court may be able to take additional action. For instance, in a divorce case where one party is required to sign over title to the family home but refuses to do so, the court can help. In situations that require the signature of an unwilling party the court can appoint an elisor. An elisor is a court-appointed person that is able to sign documents in lieu of the reluctant party. Appointing an elisor is just one method of enforcement; the court has broad powers to enforce family law judgments.
Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.