Even though a Judgment of Divorce is final, problems might and frequently do continue. Post-judgment actions include requests for modifications, which are actions seeking to change something about the divorce Judgment, and actions for contempt, which seek to have the other party punished for failing to comply with the Judgment. Both of these post-judgment actions are very common, and they make up a sizeable part of our practice.
Generally, a modification will be granted only if the plaintiff can prove a “material change in circumstances” since the Judgment or Order. Everyone knows things change all the time, especially when it comes to money and children, but a Judgment will be modified only if the change is substantial. In some cases, the plaintiff must show that the change is adversely impacting children. In other cases, it must be proven that the Judgment is not working. When it comes to kids, remember, the “best interests” is the most important consideration.
Modifications are not reserved to things relating to children. Certain kinds of alimony awards, like permanent/periodic and rehabilitative, can be modified upon a showing of material change in circumstances. Other orders of the court can be modified, and the evidence and standard varies from case to case.
If a party fails to comply with a Judgment, he or she could be found in contempt of court. The chancellor can find the party in civil contempt and order that a fine be paid. Or, in other more severe situations, the court can find the person in criminal contempt and order imprisonment. Judges frequently grant attorneys’ fees to the party filing a contempt action, if the action is successful. The general logic behind this policy is that the defendant knew what they were supposed to do, didn’t do it, and essentially forced the plaintiff to file the action and incur attorneys’ fees. Naturally, not all cases qualify for the recovery of attorneys’ fees, and the decision is within the discretion of the chancellor.
Contempt actions can be filed even if the Judgment was based on a settlement. For example, if a married couple gets a divorce based on Irreconcilable Differences, the resulting Judgment is still a judgment of the court; therefore, it has the same force of law as a Judgment issued by the chancellor after a full trial on the merits of the case. When the judge signed the Judgment, it became the rules between the parties, and violating it can be contempt.
Modification and Contempt actions are governed by special rules in Mississippi. There are specific timelines for hearings, as set forth in Mississippi Rule of Civil Procedure 81, and there are special summonses required in these cases. Generally, and subject to a few exceptions, the defendant is not required to file a written answer to a Complaint for Modification and/or Contempt. The defendant is, however, entitled to notice of when the hearing on a request for Modification and/or Contempt will be held. That is, the Rule 81 Summons should contain the date and time when the defendant is to show up and defend against the allegations in the complaint. The same court that granted a divorce has jurisdiction over litigation post-divorce.
Contempt and Modification Resources
Frequently Asked Questions About Post-Divorce Problems
- My divorce papers say I can’t have someone spend the night at my house if we are unrelated by blood or marriage – that’s just form language and has no legal effect, right? No, that is incorrect. A Mississippi chancery court judge has the discretion to find a party in contempt for failing to comply with the court’s judgments and orders. That means the violating party could be fined or incarcerated or both.
- Will I be forced to pay the other side’s attorney’s fees? Possibly, depending on the facts and type of your case. For example, in a contested divorce case, the question is whether the party requesting their fees has the ability to pay them without assistance. In contrast, if a party is found in contempt of a judgment or order of the court, there may be a better chance the party will be ordered to pay the opposing party’s fees, regardless of whether inability to pay is established.
- If I fail to pay child support, can I be incarcerated? Possibly.
- Why does a simple contempt case cost so much money? The price an attorney charges to handle your case depends on many things which are individual to the attorney with whom you are talking. Our firm quotes prices based on complexity of the facts and laws unique to each case, plus a prediction, based on previous experience, of the amount of work required on the case.
- I got a divorce a few years ago and I want to change where my ex and I meet to drop off the kids for visitation and how much visitation my ex will get – how do I get this changed? To change a judgment or order of a MS court, in general, you will have to file a lawsuit requesting the change, even if the opposing party agrees to the change. The proof required depends on the exact nature of the case, but you will generally be required to show that there has been a material change in circumstances since the last Judgment.
- Is joint custody a good idea? It depends on the facts of your case. If a married c couple seeks a divorce based on Irreconcilable Differences, and it is likely that the parties can get along when it comes to parenting decisions after the divorce, joint custody might work for them. Things to consider are work schedules, the places where you and your spouse will live after the divorce, plus the most important factor – what is best for the children. In an Irreconcilable Differences divorce case, the judge can grant joint custody only if both parties request joint custody. See Mississippi Code Annotated Section 93-5-24(2) in the resources section of the Divorce Center page. In other cases, joint custody may be awarded, in the discretion of the judge, where one or both parents requests joint custody. See Mississippi Code Annotated Section 93-5-24(3). in the resources section of the Divorce Center page.
- Is the mother of a child automatically preferred in a custody case? No.
- What is mediation? Mediation is a form of “alternative dispute resolution.” In general, it is an agreed-upon effort to settle a case out of court, conducted by a trained professional. The results of mediation are not binding unless they are agreed upon in a written settlement agreement.
- Does mediation work? Mediation can be very, very effective, and it is generally worth the effort, especially if settlement negotiations are at an impasse.
- I got a divorce a few years ago – will the judge be the same in my contempt and modification case? Yes, under the Mississippi Supreme Court’s opinion in Tollison v. Tollison, 841 So.2d 1062 (Miss. 2003) the Chancery Court judge who handled the divorce will handle subsequent litigation involving your case.
- How long will my case take to get finished? It is impossible to say how long your case will take. Modifications of Judgments and contempt of court actions can be taken to court more quickly than other cases, under Mississippi Rule of Civil Procedure 81, but there is no guarantee the court will have a place on its docket for your case within the time frame(s) stated in the rule. Except for certain kinds of actions, the court’s docket is set on a first-come, first-served basis. The point is, your attorney generally cannot control how long a case will take because he or she has no control over (1) the court’s docket; (2) what the opposing party will do; or (3) what the opposing attorney will do. All of those things can make a case drag on and the cost of your case go up, so patience is absolutely necessary when you are involved in a family law case.
- My child is twelve years old and says she wants to live with me instead of my ex-wife. Isn’t it true that the judge has to let my child live with me? No, that is not true. The court should consider the wishes of a child over twelve years old in a custody case, but the child’s wishes are not controlling.
- What is standard visitation? There is no such thing as standard visitation. Judges sometimes order very similar visitation schedules, but there is no statute or case that sets out any specific child visitation schedule that is required under Mississippi law. Like families, visitation arrangements can be very different, and what works for one family might not work for another.
- My case is set to be heard at the same time as another case. Why do they do it this way? Cases get settled out of court very frequently, so the court administrator may set more than one action for the same time. If the first case is settled before trial, the second case will go first, and so on.
- The opposing party’s attorney sent me discovery questions that ask very personal questions. Once I fill these out, will the judge read them? It is fairly unlikely that the judge will ever see your discovery responses, although it is possible. The judge doesn’t sit around in his or her office reading discovery responses because, for one thing, discovery responses are usually not filed in the court record. The judge also has no reason to read discovery responses unless they are asked to, or if they become an issue in the case.
- How does a court decide child custody? The most important consideration in a custody case is the best interests of the child. The Mississippi Supreme Court set forth a test to assist judges in child custody cases in Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983), a copy of which is provided in the resources section of the Divorce Center page. Those factors include the following: (1) the age, health, and sex of the child; (2) a determination of the parent who had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parents and responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of the parent and child; (7) moral fitness of the parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) the stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship.
- Is it a good idea to settle out of court? It depends on the specific facts of a case, but settlement can be a very effective use of resources. Many people believe that, even if they can’t get everything they want in their case, an agreement is better than taking a chance on what a judge will decide based on a limited snapshot of the facts, which is what a trial is, ultimately.
- What are the advantages of going to court as opposed to trying to settle? Keep in mind that family law settlements are contracts, negotiated like any others, except they involve much more personal subjects. In some cases, if the other side of a dispute isn’t interested in settling a case, then it doesn’t make sense to spend a lot of time making settlement offers. Sometimes, like when the parties can’t agree on anything, going to court is the only option. Like the old saying goes, “that’s why they make courthouses.” But, if all parties are interested in settling out of court, working hard to negotiate a settlement sometimes makes sense. Again, many people believe that, even if they can’t get everything they want in their case, an agreement is better than taking a chance on what a judge will decide based on a limited snapshot of the facts, which is what a trial is, in the end.
- What is a Summons? A summons is a legal document, issued by the clerk of a court, which is served on a defendant in a lawsuit. This document either commands a written response to a Complaint or instructs the recipient to appear at a certain time and place to defend against a civil action.
- I just got served with a Complaint. What is this? A Complaint is the document that, along with a Summons, notifies a defendant to a civil action that a claim has been filed. In some situations, a Complaint must be responded to in writing; in others, the defendant need only show up at the time and place identified in the Summons to defend against the Complaint.
- What is a Supboena ad Testificandum, a Trial Subpoena, or a Deposition Subpoena? All three of these Subpoena types command the recipient to attend and give testimony at a particular proceeding, such as a trial or deposition, as stated in the Subpoena. The Subpoena should be served on the recipient by someone other than a party, over the age of eighteen (18), and the recipient is entitled to the payment of witness fees ($1.50 per day of testimony and five cents per mile going to an returning from the courthouse to their home) along with the Subpoena. See Mississippi Rule of Civil Procedure 45 and Mississippi Code Annotated Section 25-7-47.
- My spouse and I agree that we want a divorce, but we can’t agree who gets custody of the kids or who gets our property. Can we still get a divorce if we don’t have a fault-based ground? Absolutely. Mississippi Code Annotated Section 93-5-2 allows parties to submit some, or all, of the issues to a court to decide when the only agreement is to get a divorce.