POST JUDGMENT PRE COURT CHECK LIST
(a layman’s guide to getting the necessary groundwork before even thinking of going to court resolving some post judgment problems)
When two parents do not agree the method of resolving their differences after a divorce has been entered, it is know as “Post Judgment” Let me first point out that this is not about contempt of court, but rather a dispute such as ordinary couples have relating to their children. How the dispute is handled by the courts will depend on whether there is a Joint Parenting (Joint Custody) agreement (Order) or simply a Parenting (Custody) agreement (Order); the prime difference is in the method of handling a dispute. Simply put (unless it is life threatening) in the case of a joint parenting agreement or order, there is a mediation requirement that is imposed before the litigation. That difference aside, I thought it might be useful to look at a general approach to dealing with issues that will ultimately end up in court and before a Judge.
The elements of giving your ex-spouse notice that you disagree, are very simple:
A notice to the ex-spouse that there is an area of dispute (and a brief description of the disputed items);
An offer or attempt to resolve the dispute (and in the case of Joint Custody) the mandatory introduction of a mediator as a condition precedent to litigation
Finally, when all else fail, the matter is resolved In court.
Note: all of my advice is aimed at preparation for ultimate litigation, with things that will be needed to be successful in getting before a Judge, if all else fails. However, getting before a Judge, does not mean “you win”.
The most important element in post Judgment matters is to identify the subject of the dispute. If the dispute is about the choice or need of “braces”, for example, the first thing to do is look to the Order or Agreement and determines if one of the parties is given the exclusive right to deal with this matter. If not, then your first task is notifying your ex-spouse that you disagree with the decision and I suggest:
Do it in writing (email, letter or fax) as long as you can keep a copy and prove that you sent it
Spell out in the writing the part of the decision (perhaps the choice of the Doctor, the method of payment, the division of the expenses or even if it is necessary)
Suggest (in the letter) your proposal
Request a reply (this may in many cases, solve the problem)
After an attempt to discuss the problem, if it is not solved, and there is a Joint Parenting Order or Agreement, you must offer to mediate
This is where the joint parenting/custody order or agreement is important. If you do not offer (and your ex-spouse refuses) to mediate, your application for Judicial help may be blocked. Even where the agreement or order does not require, your offer to asking someone to mediate or help with the decision will be an important part of your proof of your “good intentions” and attempt to work it out without the court, drama, lawyers, etc.
Just simply asking (notice) is not enough, you need to offer alternatives, provide estimates of cost and if possible the opinion of a third party that the expenses is needed; and, offer to divide the cost (50/50 is not always appropriate, sometimes a greater or lesser percentage is warranted.
If you do mediate or work out a solution, memorialize it by exchanging a letter that both sign spelling out the agreement; if that is impractical, an email that says: “this will confirm our understanding that.... “ is helpful if litigation follows.
Once you have made your objections known, given your ex-spouse a chance to respond, offered or participated in some sort of mediation, and you have all this documented, the its time to see the attorney and get into court.
The court procedure is not complex. In most courts a Judge (perhaps even the Judge that you previously appeared before) is assigned as to the Post Judgment Calendar.
If the dispute does not involve a violation of an order (or agreement made a part of an order), your attorney will prepare a Petition or Motion which sets forth the dispute, shows your attempts to discuss or compromise the differences, shows your good faith and the unreasonableness of your ex-spouse. The Motion will ask the court to judge the dispute. In order to be effective, your notices, requests and written “paper trail” showing your efforts to resolve the matter (and in the case of Joint Custody) attempts at mediation, will be required. The case is set for a date and your ex-spouse is sent a notice of motion (announcing that the petition will be presented) on a date certain;
Your probably asking, what will this cost and can I compel my ex-spouse to reimburse my legal fees. The answer in the most “lawyer-like method” is yes and no. Look to the agreement. Does it provide that if one party acts unreasonable and the other is required to go to court to get help, that legal fees can be imposed. Also where behavior is so outrageous, the matter is a clear violation of a court order, then entirely different remedies are also available . . . but that is for another day.
Arnold D. Goldstein
©2013 Arnold D Goldstein, all rights reserved.
POST JUDGMENT CHECK LIST edited: January 10, 2013 4:55 PM