More on Post-Decree Litigation / Modifications

Craig P. Treneff, located in Westerville, Ohio, practices Post-Decree Litigation in Franklin County. We also assist clients in Delaware, Fairfield, Pickaway, Madison, Ross and Marion Counties.

Post-decree litigation is that which takes place after the granting of a decree of divorce, dissolution or legal separation. Often one party determines that the ex-spouse has violated a prior order of the court in some way and files a motion to have the order enforced and the offending party punished. This is generally known as a contempt action.

Another major source of post-decree litigation involves children. In all divorce, dissolution or legal separation decrees in which there are minor children of the marriage, the court that issued the original decree retains jurisdiction over all matters pertaining to the children. This is referred to as the "continuing jurisdiction" of the court. The bulk of post-decree matters before the courts involve custody-related issues.

Often a court will retain jurisdiction over the issue of spousal support. If circumstances change from the time of the original spousal support award, it may be modified by post-decree motion. This generally will happen if there has been a significant change in the income of one of the parties that was not foreseen at the time of the award.

Post-decree litigation is commenced in the form of a motion by one party. The original case caption and number will be used. The person filing the motion must serve the other party with the motion as in the commencement of a divorce. The motion is set for hearing before a magistrate of the court. A magistrate is a lawyer appointed by the court to hear a variety of pre-decree and post-decree domestic relations matters. The magistrate function like a judge in the case and conducts all conferences, hearings and trials.
Because of the volume of cases set before magistrates, it may take some time before an actual trial can occur. Prior to trial, the attorneys will conduct discovery just as in a divorce case. Oral depositions, written interrogatories, requests for production, inspections and requests for admissions are some of the methods used to discover the facts of a case.

Following trial of a case by the magistrate, either party may file written objections to the decision. The objections may be argued before the judge assigned to the case. Motions involving the allocation of parental rights and responsibilities may ask the court to change the custody of a child. The court may, if a number of legal tests are met, modify the existing custody order. The court must be shown that a change of circumstance has occurred since the time of the decree, that the change is in the best interest of the child, and that the benefit resulting from the change will outweigh any harm.

Commonly, in motions seeking change of custody, a guardian ad litem is appointed to represent the interests of the child. The guardian conducts interviews with both parents and the child, visits the child in the home of both parents, and may interview other relevant witnesses. Ultimately, the guardian will make a recommendation to the magistrate.

The amount of child support that should be paid may be considered in a post-decree motion as well as visitation issues and health insurance matters (pertaining to children). Where the parties are in agreement on a post-decree modification, a motion and entry may be "walked" through the court process, eliminating the need for a hearing.

If you have legal concerns regarding post-decree litigation, contact us today for a consultation.