When Once Isn’t Enough

written by Jim Duzak |

I’ve always felt that the toughest of all family law cases are the ones in which the parties go back to court—sometimes repeatedly—seeking either an enforcement of the original divorce order, or a “modification” (court-ordered change) of the order.

In general, people who bring enforcement actions tend to be angry with their “ex”; sometimes very angry. And oftentimes they have every right to be. I have no sympathy for people who ignore child support or alimony obligations, or who knowingly run up debt in their ex’s name, or who commit other clear violations of a divorce order. Typically, judges don’t have a lot of sympathy for people like that either. The problem, though, is that a judge’s ultimate deterrent in such cases—jailing the offender for contempt of court—is not going to directly compensate the victim. In fact, if the offender (let’s say it’s the husband, but it could just as easily be the wife) loses his job as a result of going to jail, the situation only gets worse. After a few frustrating trips to court, the victim often gives up in disgust. By then, the disgust extends not just to the ex but also to the judge and the entire legal system for failing her.

People who bring modification actions shouldn’t be as angry about their ex’s post- divorce conduct as people who bring enforcement actions, because the basis of modification is an alleged change in circumstances rather than a violation of an order. For example, a wife might ask the court to recalculate her ex’s child support order because he’s supposedly earning a lot more now. Or a husband may ask for a downward recalculation because he’s now claiming to be earning less.

Unfortunately, what begins as—on the surface, anyway—an honest difference of opinion may quickly degenerate into a nasty fight. The wife becomes convinced that the husband is hiding income or artificially earning less than his earning capacity. Or the husband may feel that the wife’s real purpose in bringing the modification action is to torment him or somehow drag his new wife into the picture. And, indeed, I’ve seen more cases than I care to remember in which one or both parties seemed to have a psychological compulsion to keep the case going forever. As soon as one modification issue has been decided, another one always seems to be filed. In extreme cases, judges have been known to limit the frequency of modification requests from certain parties, or even prohibit them altogether.

Typically, post- divorce legal actions—whether for enforcement or modification—arise in cases where one or both parties were unhappy with the original divorce orders. If people are sufficiently unhappy with an order, they’ll either ignore it or they’ll find some back-door approach to try to change it. And these kinds of legal actions also arise far more frequently when the divorce was an ugly one. A lot of divorce litig...

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