Requesting post decree court action after a divorce is finalized, is a common court proceeding and something we see on a regular basis.
What Are The Reasons Someone Might Seek A Modification After A Decree Has Been Finalized?
The reasons people are back in court post-divorce are many and varied. However, child issues are the most common reason people find themselves pursuing or defending a post decree court action. These include increasing or decreasing child support; enforcement of child support; requests for changes in visitation schedules; and custody matters or changing who has “primary custody” or in legal technical terms who has the exclusive “right to determine domicile”. Additional less common but highly publicized issues are grandparents’ rights to custody and visitation and requests by the primary custodian to move out of state or out of the country. Enforcement of the property division provisions are also a fairly common post decree action.
When And Why Would A Division Of Assets Decree Be Modified?
Modification of the division of the property or debt is unusual. Fraud committed by one spouse upon the other in the failure to provide information regarding assets or the hiding of assets is one of the main reasons that cause such a modification. Sometimes additional court action is required in the situation where the divorce was finalized in a court that did not have jurisdiction over one of the parties or the property and thus the property was not divided in the decree of divorce. Occasionally, even when the court had jurisdiction over the parties and the property, the property does not get divided in the decree of divorce and is subject to post-divorce division.
If An Asset Was Omitted In A Decree, Can It Be Modified?
An asset may be the subject of a post decree action to divide if the original decree of divorce did not address the asset and the court has jurisdiction over the parties and the asset.
Under What Circumstances Can Custody And Visitation Orders Be Modified?
Many circumstances may be the basis for a request to modify custody and/ or visitation. They can include a move of the custodial or primary custodian; a new job of either parent; illness or physical malady of either parent; physical, mental or emotional issues of the child; a removal of alcohol or drug issues of one of the parents; remarriage of one of the parents to someone that causes issues with the child; criminal issues of one of the parents; and the death of one of the parents.
What Is The Legal Standard Or Basis Needed To Modify A Decree?
Whatever the fact scenario as to why a person wants to change a previous custody or visitation (possession and access) order, the requested modification must be in the “best interest” of the child and:
- The circumstances of the child, a conservator, or other party affected by the order must have materially and substantially changed, or
- The child is at least 12 years of age and has expressed to the court in chambers the name of the person who is the child’s preference to have primary custody (exclusive right to designate the primary residence of the child, or,
- The conservator who has primary custody (exclusive right to determine the primary residence of the child) has voluntarily relinquished the primary care and possession the child to another person for at least 6 months.
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