Modifications & Enforcement of Prior Court Orders
Modifications & Enforcement of Court Orders: Protecting Your Rights and Ensuring Compliance
Table of Contents
Frequently Asked Questions About Court Order Modifications and Enforcement
I do not like my previous court approved agreement and wish to modify it. Can I do so?
Unfortunately, it is insufficient to modify a previous court approved agreement because you no longer like your agreement. You must have a material and substantial change in circumstances since your order was issued to be able to modify your agreement.
I am required to pay alimony in my previous court approved agreement, however, I am now retired and can no longer afford this support payment. What can I do?
The language of your agreement may control whether you have the ability to modify your alimony terms. For instance, some agreements require alimony to be nonmodifiable no matter a party’s circumstances. If your agreement is not nonmodifiable, and you have retired, this could be a material change in circumstance allowing you to seek a modification of your alimony obligation. However, this is a case by case basis and it is important that you seek advice from legal counsel about your options.
I have a final court order in South Carolina regarding custody and visitation of our children, however, my children’s father has relocated to another state and has refused to pay. What can I do?
While you may have a court order issued in this State, it is possible to enforce the terms of your court order in another state. This may require the registration of your SC Order in the county and state where your child’s father resides. Enforcement proceedings can be filed there which means you may be required to seek legal counsel in another state to do so.
What Are Modifications and Enforcement Actions?
While the goal is always to ensure a result with finality for our clients, the truth is that circumstances can change requiring further court intervention even after you obtain a final order in a custody, child support, or alimony case.
Even upon issuance of a final order in your matter, child custody, visitation, child support, and alimony are always modifiable based upon a material and substantial change in circumstances since your final order was issued.
For example, assume your former spouse received custody of the children with visitation to you, but was later arrested for drunken driving with your children in the vehicle after the issuance of your final order. This could be considered a material change in circumstances for you to reopen the custody, visitation, or child support provisions of your final order seeking a modification of those terms.
Any modification action requires new litigation, meaning you are required to file a new case in the family court and go through new litigation to obtain a new order that modifies the old order. This will include filing for and attending a Temporary Hearing, engaging in discovery and mediation, and if not successful at mediation, having a trial on the issues. This process is explained in more detail in the contested divorce page of our website.
A material change in income due to no fault of your own may also be a ground to modify your child support or alimony obligation under your former order. For instance, if you lost your job through no fault of your own and the economy is such that you are unable to find employment at the same level of earnings as before, this could be a ground to seek to modify your last order.
Again, modification actions require all new litigation so that you are required to go through the same litigation process as you did before but addressing different issues.
When Can a Court Order Be Modified?
Voluntary Agreement Between Parties
Modification actions may be able to be resolved by the parties executing a written agreement that serves to modify specific terms of their previous order. While this does not always happen, sometimes the parties can see eye to eye to execute a new agreement. The new agreement must then be court approved.
Loss of Income or Job
A material change in income due to no fault of your own may be a ground to modify your child support or alimony obligation under your former order. This may include disability or other loss of previous income due to no fault of your own, such as a downturn in the economy.
Your alimony obligation may be modified based upon the same grounds so long as the terms of your old order do not prohibit modification. Provisions in your agreement that state that alimony is nonmodifiable cannot be changed in new litigation. An alimony award could be increased if it is determined your former spouse had a significant increase in income since your last order was issued.
Voluntary underemployment will not constitute grounds to modify your child support or alimony obligations. The court can still assign income to you at the level you were earning if it finds that you have purposely attempted to decrease your income.
Relocation
Relocation of either parent of a significant distance from where both parties were located when the original order was issued is ground to seek a modification of the custody or visitation provisions contained in your final order.
As with general child custody disputes, our courts consider the best interest of the child standard in determining whether the move should be allowed.
In general, South Carolina law allows for the parent who has been awarded primary custody to make the decision to move out of area or out of state. The policy behind this is that our courts cannot restrict a custodial parent from moving based upon basic liberty interests. That said, the opposing party can still file an action seeking to prevent the relocation alleging that the move is not in the child’s best interest. As a result, a potential relocation could result in new litigation between parents regardless. A Guardian ad Litem will be appointed for the child and litigation will ensue.
Enforcing Existing Family Court Orders
Many people have difficulty getting their former spouse or the parent of their child to comply with the terms of the order. This may include failure to timely pay child support or alimony or at all, failure to refinance a home within the timeframe required, failure to provide court ordered visitation, and the list can go on.
In such cases, so long as the terms of your order are specific in nature and not vague, contempt proceedings are available to you to force the noncomplying party to come into compliance with your court order.
A contempt proceeding is an action asking the Court to enforce its order. The opposing party must be personally served with the action once it has been filed and a date for the hearing is set.
A contempt proceeding requires a trial on the issues, meaning you must testify and present evidence and exhibits in front of a judge to prove your case by a clear and convincing standard. The opposing party must prove a defense or inability to comply with the terms of the order by a preponderance of the evidence standard.
At conclusion of the evidence presented by both parties, the court can order the offending party to be confined in jail, perform community service, reimburse attorney fees and costs to the complaining party, or a combination of these sanctions. Faced with these ramifications, the responding party usually decides to perform what he or she was originally court ordered to do to avoid these sanctions.
Any vagueness or ambiguity in a court order will be a defense against a contempt complaint. Therefore, it is important that your court order be very specific as to what each party is required to do for enforcement purposes.
In sum, litigation may not necessarily stop on account of you obtaining a final order in your case. It is imperative that you seek counsel familiar with these issues to ensure that your rights are protected.
Non-Payment of Child or Spousal Support
The failure of a party to pay their court ordered alimony or child support is enforceable through contempt proceedings. This requires that a Rule to Show Cause be filed and personally served on the party who is obligated to pay. A trial is held on the issue before a judge with testimony of the parties and witnesses, and evidence submitted.
The party petitioning the Court has the burden of showing that the paying party willfully violated an existing court order. The burden then shifts to the defending party to provide a defense for not performing under the terms of the Order.
If the Court finds the defending party willfully violated a court order, it can require him or her to serve jail time which may be purged by the immediate payment of what is owed under the order, together with reimbursement of the petitioning party’s attorney fees and costs.
Violation of Custody or Visitation Orders
Similarly, if a parent refuses to abide by a visitation order such as failure to return the child to the custodial parent at the court ordered time, this can also be a ground to seek enforcement of the court order through contempt proceedings.
Our Legal Services for Modifications & Enforcement
We have experience in modifying and enforcing court orders.
Why You Need a Family Law Attorney
You will need an experienced lawyer to assist with modification and enforcement actions. Enforcement actions require knowledge of the Rules of Evidence and proper trial procedure to ensure competent evidence is submitted to the trial judge.
Ready to get started?
My late father, Jan Warner, was an accomplished and widely known family law attorney and nationally syndicated author in South Carolina, so this area of law runs in my blood. It is all I have ever known, and I cannot imagine doing anything else.