ITS OVER, ISN’T IT . . . . POST JUDGMENT OR “NOW WHAT?”
The divorce is over, isn’t it? The Judgment is entered, property settlement done, custody and visitation worked out and lawyers paid. Now what. . . Unfortunately, it’s the beginning of a very difficult time in your divorce . . . post judgment, collection of support, enforcement of visitation; and that very nasty duo: change of custody and removal from the State of Residence. I need to emphasize, I am an Illinois lawyer and while I believe some principals are universal, I can only speak Illinois law where I am quite experienced
I. CHANGE OF CUSTODY
Here is the rule in a nut shell: If it’s under two years from the entry of the Judgment, you cannot change custody (and this is the general rule) unless there is eminent danger to the “child’s physical, moral or emotional health” This is an extremely specific standard and is not the same as “bad dad” or “bad mom” or “unhappy child”, it is serious endangerment. For those of you who like to quote statutes, the Illinois Marriage & Dissolution of Marriage Act (IMDMA) 750 ILCS 5/ . . . .
Sec. 610. Modification
Unless by stipulation of the parties or except as provided in subsection (a‑5), no motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health.
The grand daddy of exceptions is always:
A parent who intends to marry or reside with a sex offender, and knows or should know that the person with whom he or she intends to marry or reside is a sex offender, shall provide reasonable notice to the other parent with whom he or she has a minor child prior to the marriage or the commencement of the residency.
After two years, the standard is less dramatic:
clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, or in the case of a joint custody arrangement that a change has occurred in the circumstances of the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child.
CHANGE OF CUSTODY: So here is the short summary, under two years, really difficult unless there is something very dangerous to the child’s physical, mental, moral or emotional health; after two years although the burden of proof is high (clear and convincing evidence), the issue is more focused on the “best interest of the child”
There are several approaches to enforce an order of court or agreement which is part of the marital settlement incorporated into the Judgment.
The first method is “contempt” or “let’s try to put the poor spouse in jail.” Contempt is the power of the court’s to enforce its orders and to require respect for the court. In Illinois, contempt is either criminal or civil, and either direct or indirect. For the sake of this article, we will briefly talk about the indirect civil contempt that occurs where a party who is required to do something (like pay alimony or maintenance or even child support) decides that his/her own needs (a car, a vacation, etc) is more important then the support obligation to his spouse or children.
The court has no sympathy, it issues an order which we affectionately call a “show cause” which says:” You are ordered to explain why I (the Judge) should not find you in contempt (and punish you with fines, jail or something else) for not following the order of court or agreement of the parties”. The alleged “CONTEMPTOR” (he who commits contempt) has to show a reason, such as he lost his job, went broke, got robbed, or lost his money . . . if not there are consequences: those consequences are the choice of going to jail or paying what you owe, being fined, going to jail and perhaps from the lawyer’s point of view, the most effective: paying the other person’s attorney’s fees.
Another method of enforcement is getting a Judgment and collecting the money owed by a wage garnishment (order to withhold) or attachment an asset (such as a bank account or car) and liquidating it to pay the bill.
III. A FAILURE TO SIGN A DOCUMENT
In an even stronger case, a person ordered to sign over real estate (or a car) who has failed to follow a specific Order, might find out that the Judge has signed the Title and transferred it.
Other violations can result in losing rights. For example, a party with a visitation right, can lose or forfeit the visit if he/she is consistently late in pick up or delivery of the child to the other parent.
III. I NEED MORE . . . OH NOT, I CAN’T AFFORD THIS
Increasing and decreasing support payments are the yin and yang of the Divorce Attorney’s practice. For every parent collecting child support, it’s never enough and the paying spouse is not paying what he or she should. For every parent paying support, it’s too much and the ex-spouse is making a profit on the children. Here is the story: in Illinois child support is generally “guide lines” which means it’s a calculation of take home pay (gross income generally less the applicable.
COPYRIGHT, ALL RIGHTS RESERVED, ARNOLD D. GOLDSTEIN 2009