POST-DIVORCE AND POST-PATERNITY ACTIONS
WHAT ARE POST-DIVORCE AND POST-PATERNITY ACTIONS?
Both of these terms refer to actions taken AFTER a final divorce or paternity order has been entered. The final order in a divorce case is typically entitled a “Divorce Decree” or “Decree Granting Absolute Divorce,” while the final order in a paternity case is usually called a “Judgment.” These final orders are not absolutely final, however – post-divorce/paternity actions can be used in either modifying or enforcing Court orders in Hawaii.
WHAT CAN BE MODIFIED?
A number of issues in divorce and paternity may be modified, if sufficient basis is given to the Court. Among the modifiable issues in a divorce are: child custody/visitation, child support, alimony, and medical insurance for any children. Among the modifiable issues in a paternity case are child custody/visitation, child support, and medical insurance for any children. This does not mean that every case can be modified by any party wishing to change the terms of their order – the party seeking a change usually has the burden to prove to the Court why a change is necessary. The most common modification topics are addressed below.
Custody: child custody can be changed, but it typically is not a simple matter. The party seeking a change has the burden of proving that there has been a material change in circumstances since the last custody order. If this material change can be proven, then the Court may move onto the question of exactly what should be done. Custody changes do happen, but should not be started lightly, as they can be costly in time, money, and emotion.
Visitation: visitation changes are more common than custody changes. In part, this is a reflection of the fact that children get older, and what is suitable for visits when they are very young for example, may not be the same when they are teenagers. Some parties are simply seeking to alter the weekly schedule, while other may be seeking to change how visits take place, from unsupervised to supervised, or supervised to unsupervised.
Child support: probably the most frequent modification request made, either in Family Court or administratively at the Child Support Enforcement Agency. This is because the change required to get a modification is fairly straightforward – income has gone up, income has gone up, the cost of medical or childcare has gone up or down. As such, these modifications are usually simpler than changes to custody or visitation.
In most cases, issues such as property division (assets AND debts) are NOT modifiable. Each case is unique however, and a person wishing to modify their divorce or paternity order should speak to a lawyer to see what may be done.
WHAT CAN BE ENFORCED?
A party to the divorce or paternity may ask the Court to ENFORCE most issues in the decree or judgment, where the other party has not done what is required of them. This would include enforcement of a party’s rights in child custody/visitation, child support, alimony, property division, debt division, signing necessary transfer papers (such as for a car), have a name removed from a title/mortgage for a piece of real property, and other issues. As noted above, each case is unique, and a person wishing to enforce their divorce or paternity order should speak to a lawyer to see what may be done.
WHAT ABOUT MY LAWYER’S FEES?
In certain instances, the Family Court may order your opposing side to pay your expenses (such as lawyer’s fees) for bringing the matter back to Court. Typically, this is more common in situations where one party is seeking to ENFORCE their rights under the Decree/Judgment — i.e. the other party violated the Decree or Judgment, “forcing” the other person to bring the Court action. An award of lawyer’s fees, or expenses, however, is not guaranteed, and is ultimately up to the Family Court Judge.
WHERE DO I START?
It is helpful if you fill out our Post-Decree Questionnaire, prior to sitting down with one of our attorneys, so that they may better understand the issues that you would like to address. Our Post-Decree Questionnaire is in Adobe Acrobat , and may be downloaded below:
WHAT CAN DOI/LUKE DO FOR ME?
When considering going back to court in your case, whether you are seeking a modification or an enforcement, it is important to discuss your options with an experienced attorney.
To determine if you can modify or enforce particular rights/obligations in your case, you should speak to an experienced Hawaii family lawyer. If you’d like to set up a consultation with one of our lawyers, please call us at (808) 593-2199 or e-mail us at email@example.com.