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” has occurred since the entry of 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 an award of 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 law, 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.
The truth is, many family law cases are never really over. Visitation disputes arise, and people fail to pay child support. Parties decide to move away, and sometimes they don’t work very well together, even after the first “round” of litigation. Situations like this lead to even more litigation, including actions for Modification and Contempt.
Generally, a request for modification asserts that something isn’t working or that there has been a material change of circumstances since the Judgment was entered, and the party filing the request asks the court to modify the Judgment to fix the problem. Sometimes, the problem is caused by the language of the Judgment itself, and sometimes it is caused by circumstances of life.
When a person fails to comply with the Judgment of Divorce, the innocent party is sometimes entitled to file a suit alleging contempt of court. The person in violation can be fined monetarily or imprisoned.
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