Vacanti Shattuck Attorneys

How Often Do You See Requests For A Post-Decree Action After A Divorce?

It’s a fairly common occurrence to have somebody come in after their divorce is entered and want changes or they want to have something modified or even to enforce a decree. So I guess the simple answer is it’s fairly common and it’s expected. The idea of a divorce decree is that the parties are supposed to follow the terms of the decree but there are always changes in circumstances of each party and the court expects that to happen.

What Are Some Reasons That Someone Might Seek A Post-Decree Modification?

After a decree has been finalized, some of the reasons that a party might want to come back in and re-look at it or come to me for a post-decree action would be for a modification. It seems to be the most popular thing because people’s lives change and means change. Modifications are relatively common and that can be for child support if parties’ incomes have changed, it could be for modification of custody or visitation if the situation for either party changes. A spouse may have to get remarried or a spouse might have to move away and you might have to even file to try to get a removal from the state of Nebraska or whatever state you are in. There is also a post-decree action for enforcement. If one of the parties is not following the existing orders, you might have to bring a contempt action or some type of motion to compel the party to follow the terms of the order.

There are a whole array of reasons that you might want to come back and look at that. Again, this is expected by the court. There is case law that supports the fact that people have changes in circumstances and need to come back to court and modify it.

When And Why Would A Division Of Assets & Debts Decree Be Modified?

Usually, once a decree is entered, the terms relating to property division are not to be modified, that would be a rarity, at least in the state of Nebraska it would be. There are circumstances where the division of assets and property might be looked at again in a post-decree action if somebody had not fully disclosed all their assets or debts and that’s happened before. That’s basically a situation where the court considers it fraudulent but in most cases, the golden rule is there would not be a re-modification of assets.

If An Asset Was Omitted In A Divorce, Can The Decree Be Modified?

There are exceptions to every rule but the general rule is that a decree relating to property rights is not modifiable. There are circumstances where it is. For example if somebody withheld information that wasn’t available at the time the decree was entered maybe fraudulently, you could reopen it and ask the court to re-address the issue but in most circumstances the parties had the ability, even if they didn’t know about a missing asset, they had the ability to know about it by doing discovery, asking the questions and sending out subpoenas and things like that but if it was a fraudulent hiding of an asset and you found out about it then certainly you can come back to the court and ask the court to reopen the case for that purpose.

Under What Circumstances Can Custody And Visitation Orders Be Changed?

Custody and visitation orders are changed and it’s a common occurrence in Nebraska. You would have to show that there has been a material change in circumstances that occurred following the entry of the original decree or any subsequent order. For example, if a party got a new job and had to move away, obviously you would have to go back in and modify the visitation order or a custody order. There is a multitude of reasons to change visitation and custody orders. It could be one party is not doing their job, their circumstances have changed where their home life is not suitable, and children’s preferences come into play based on their age and maturity levels.

There is just a multitude of reasons and basically, it’s to prove that there has been a material change in circumstances, you would have to be in a circumstance that had the judge known about it at the time the original decree was entered, it probably would have resulted in a different order. That may not be known until you take the case to court but not only do you have to show a material change of circumstances, you also have to show this proposed change or this new order that you want to be entered in the children’s best interest. So it’s basically a 2 part test that has a lot of sub-questions. The court would have to review and determine if this is in fact best for the kid.

Where Must The Modification Of A Decree Be Filed?

A modification typically has to be filed in the same county where the original decree was entered unless both parties no longer reside in that county. You could, at that time ask to change the jurisdiction and ask that it be changed to a more convenient district or jurisdiction. However, that would have to be done through a motion through the request to the judge in the original county. If they agreed they would transfer the case to the new county. If either party doesn’t live in the state of Nebraska, for example, anymore, you could register the decree in the new county or the new state and ask that the modification be heard there.

Must I Have The Same Attorney Who Handled My Divorce Assist With The Modification Or Can I Hire Someone Else?

A party to a lawsuit never has to use the same attorney they have in the past. You have the right to hire whoever you choose and my advice is to choose wisely. Look into what they specialize in. Is this a matter that  they are familiar with? Most importantly,  do you feel comfortable with that attorney, and get a sense that they know what they are talking about? You also want to determine if they have a plan and that they’ll listen and respond to you in a timely manner. Those are the biggest issues but yes you can hire whoever you want and I suggest that you do that wisely and take your time and hire somebody who knows what they are doing.

Does The Same Judge Who Handled My Decree Have To Handle My Modification As Well?

It’s fairly common that you will get the same judge in a modification case. Depending on the size of your county, there might only be one judge. In larger counties where there are several judges,  you could get a different judge. It all depends on how long it has been between the hearings, whether that judge retired or whether it was re-assigned to that judge for whatever reasons, etc.

For more information on Requests For Post-Decree Action, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (402) 235-6070 today.

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