Post Judgment Enforcement / Modification

Post-judgment litigation is any legal action that seeks to enforce or to modify a previous final judgment of the Court. Usually such litigation involves the same parties to the prior proceeding. A final judgment is the Court’s ultimate decision in a case and signifies the conclusion of the main work of the Court.

Enforcement of final judgments involves either compelling a party to pay a certain sum of money found by the Court to be due and owing to the other party, or to perform or refrain from performing some act described in the final judgment. The Court can use its contempt powers to coerce or to punish a party who willfully fails to pay child or spousal support, or to comply with a specific non-monetary term or condition in the final judgment.

Modification of a final judgment is much more common in family law than in other types of legal proceedings, since it is a basic principle of family law for the Court to continue to oversee the changing financial and other circumstances of the parties and the children, and to respond appropriately to ensure their welfare. To this end, the Family Court has continuing jurisdiction to modify any decision concerning the support or the custody of children based on what is in their changing best interests, and also to modify any award of alimony or spousal support based on major, unforeseen changes in the need of the receiving spouse or the ability of the paying spouse to pay. Contempt proceedings are also more common in Family Court than in other legal disputes, since the payment of money other than for support is not generally subject to the Court powers to coerce or punish.

The payment of child support or spousal support can be enforced by the same methods used to collect any debt, or by the Family Court’s special contempt powers. The first way is ordinary civil debt collection and is usually only effective when the party owing money has money or other assets that the party trying to collect the money can easily find and legally seize in satisfaction of the debt. It also works well when the debtor is looking to protect a good credit rating. However, a far more useful method of enforcing obligations when the paying party fails to pay court-ordered child support or alimony and it can be shown that this party has the financial ability to pay, either because he or she has the money or the ability to earn the money, is a contempt action against that party. If the Court determines that a party is intentionally unemployed or underemployed, or simply refuses to pay support despite a good income or visible assets, that party can end up in jail. Unless the failure to comply with court-ordered support is serious or continuous, the incarcerated party is always given the opportunity for release, called “purging the contempt”, by paying what the Court determines is within the party’s ability to pay. But the prospect of being sent to jail, or fined, in addition to paying the other party’s attorney’s fees and costs, is still a very powerful deterrent against shirking a court-ordered duty of support.

The Family Court’s powers of contempt to enforce a final judgment or other Court order extend to specific acts required to be performed or refrained from performing. Any willful and repeated, persistent, or serious violation of any provision of the final judgment relating to the parenting plan or children’s timesharing schedule, for example, is enforceable by contempt.

Attorney’s fees are recoverable in post-judgment litigation on the same grounds as in the original litigation, namely fault and superior financial ability. A finding of contempt usually presupposes the necessary degree of wrongdoing to support an award of attorney’s fees, since contempt is defined as the deliberate failure to comply with a direct court order.

Modification proceedings can, but do not necessarily, involve fault on the part of anyone, since the right to a modification is usually based on some unexpected change in circumstances. In such cases, attorney’s fees are awardable to the financially needy party if the other party is proven to have the ability to pay such fees.

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