Dusting Off Your Divorce Decree: What to Do If Your Divorce Is Out of Date

We sit down with Pacific Cascade Legal's Partner, Will Jones, to discuss the importance of reviewing your divorce decree even after your divorce is finalized, to ensure it's up to date and accurately reflects your circumstances. In this episode, Will answers the following:

• Does A Divorce Decree Expire?
• What Circumstances Can Occur After a Divorce to Need a Modification? 
• Can The Ex-Spouses Just Agree to A Change in The Divorce Decree?
• Can Either Ex-Spouse Get a Post-Divorce Modification? 
• What Happens When an Ex-Spouse Doesn’t Follow the Divorce Decree?
• What Can Someone Do If They Can’t Comply with Their Divorce Decree?

If you would like to speak with one of our attorneys, please call our office at (503) 227-0200, or visit our website at https://www.pacificcascadelegal.com.

Disclaimer: Nothing in this communication is intended to provide legal advice nor does it constitute a client-attorney relationship, therefore you should not interpret the contents as such.

Transcript

Intro:
Welcome to Modern Family Matters, a podcast devoted to exploring family law topics that matter most to you. Covering a wide range of legal, personal, and family law matters, with expert analysis from skilled attorneys and professional guests, we hope that our podcast provides answers, clarity, and guidance towards a better tomorrow for you and your family. Here's your host, Steve Altishin.

Steve Altishin  0:28  
Hi, everyone. I'm Steve Altishin, Director of Client Partnerships at Pacific Cascade Legal. Today, I'm here with our Lead Attorney, William Jones, to talk about dusting off your divorce decree, and what to do if your divorce is out of date. So Will, how are you doing today?

Will Jones  0:50  
Not too bad, we're starting to get a little change in the weather, a little bit warmer, hoping to play some golf, but we'll see how that goes once the weekend gets here. 

Steve Altishin  0:58  
I love it. I am looking to plant, I am looking to put my lettuce in the garden this weekend. So that's what I'm gonna do. But, let's talk a little about why it can sometimes be a good idea to go pull out your old divorce decree and take a look at it. And I know people are gonna say well hold it. A thing is somewhere. I don't know where it is. I don't want to know where it is. I don't want to look at it ever again. But I mean, there are reasons there that it might be a good idea to take a look at it. I mean, divorces don't expire... or do they? 

Will Jones  1:36  
No, generally no. So first off, I think it's kind of wise to, I guess get settled in just a little bit on what we're talking about. Right. So you go, you get a divorce, you end up with what's called a judgement that basically says you guys are divorced, here's your rights, here's your obligations, here's my rights, here's my obligations. It's all wrapped up into a judgment signed by the court that becomes kind of the law of the land custody parent and child support spousal support property division, all contained in there. So that judgment doesn't go away, you stay divorced, that's kind of the way it is. Some things in there can expire, say spousal support was awarded for, say three years. At the end of three years, unless it's modified, that's going to terminate, but the divorce stays in place. property division, conceptually, is non modifiable. So whoever got property or cars or whatever that's going to be done with, but sometimes those things go out of date. So the judgment states, and it's important to know that it's a judgment, it's an order of the court, and the court will enforce that if they're asked to. Right. So sometimes it is important to go, Hey, is there something in here, that doesn't work anymore?

Steve Altishin  2:46  
So let's talk about that a little bit. I think people don't necessarily know when it doesn't work, let's kind of talk about a little couple of examples of, of, you know, what kind of circumstances can arise, you know, that can can make a divorce decree need to be changed, modified, or at least talked about with your ex.

Will Jones  3:10  
So a lot of things can happen, right. But it's important to understand that we're dealing with a judgment. So the typical one that you see 99% of the time, our parenting plan doesn't work. Okay, that's fine. Somebody got a new job. Now they work weekends, and everybody works, everything. And most of the time, most of the time, I don't have to get involved. Right, I can't be there at five, can we just do pick up and drop off at four. That's great. And all well and good that people can get along well enough to have something else work out for them. But you have to understand the judgment is what's enforceable, not the new oral agreement. So we need to go back and we need to modify that judgment if we need to enforce it. But you can go back and modify had been forced at the same time. So it gets a little tricky. In that like, typical things that make things go out of date or changes that come new job retirement lost a job, parenting time has changed, incomes gone way up or way down. Physical health, health of a child misconduct or parenting time. Remarriage can also be in there, depending on exactly how that affects people. So a lot of these things have to do with modifying spousal or child support. Child support by itself can be modified by the state every couple of years, and they'll do a periodic check in for using their services. So those are kind of some of the typical things that happen in life that could result in a change.

Steve Altishin  4:42  
You were saying that, you know, the parents can't change the judgment. But they can decide to change the judgment, can't they, if something's not working? 

Will Jones  4:55  
Yeah, exactly. So you have a judgment that sits out there and say it gives parenting time Um, every Monday, Dad changes his job. And now he's not free Monday. So now the parents just moved to Tuesday and everybody's fine. So mom decides, well, I don't like Tuesday. So now you'll get your parent time that is to go back to court, and he can only enforce the judge. And the judgment says Monday. So he's got a problem. If those two people came together and said, look, let's enter what's called a supplemental judgment, just like a general judgment, except it's supplements that that changes this parenting plan. It can both stipulate to that, although they do have to give some grounds. Here's why we're doing this, which becomes very relevant if you need to modify it again in the future. Why did you do this the first time now we know why. What are we doing now? If they would have entered a supplemental judgment, now Dad can enforce his now Tuesday parenting time. So the parties can agree to that change. A lot of times, because I'm an attorney, we don't see a whole lot of people who agree on everything, every now and then people will hire us just to draft documents, because they've already agreed, which is a great idea. But oftentimes, as an attorney, obviously, we don't see a whole lot of people who are getting along just perfectly so everybody can agree. But to make it legally enforceable, it has to be signed by the court, if not what you have, even if the party sign it and notarize it notarization doesn't do anything, by the way, doesn't change anything. But even if it's signed by the parties, what you have is a contract. It's not signed by the court, because it's not signed by the court. You can't deal with all the enforcement stuff that the court has and or penalties because you have a contract. Now you have to sue under the contract trying to get damages with parenting time. That's correct. So it needs to be signed by the court in order to make it legally enforceable.

Steve Altishin  6:34  
Are there parts of a judgement that can go on to another phrase go away by themselves? And I'm thinking is something like let's say your decrees says that support shall be paid until the spouse remarries. And the spouse remarries and looks at it and goes, Oh, my God, I got a call I gotta get this judgment changed now to show that the spouses that support is owed, or is that do they need to do that? Can that sort of decree automatically timeout?

Will Jones  7:15  
In some respects, it is possible going back to my earlier examples, spousal support for three years, at the end of three years, that award automatically terminates judgment sets of itself, it's important to note that just because support is terminated, the court doesn't know. And then by way of that the judgment hasn't been satisfied, right. So even if you have spousal support that lasted three years, you paid it all. If you go to sell or buy a piece of real property, title, companies are going to see that you owe spousal support. It hasn't been satisfied, no one has filed anything with the court to say this has all been paid. And this is terminate. It's a little different than a modification. But the court still needs to know that to clear up that judgment record and say this judgment has give the automatic termination of things is always a little bit tricky. Because you end up in the we all know what's happened. And yes, it has happened. And we all agree it's happened. And the record, right? Because when a title company searches for judgments, they don't ask you, they go to the courthouse they do it online these days, and go, is there a judgment here? And has it been satisfied or not? Hey, let's call everybody and see if he paid this, because we're talking about real property records and money judgments. So things can automatically terminate, but it's still important to go and clear up the record. So you don't create problems in the future.

Steve Altishin  8:31  
That makes complete sense. You know, I, I told the story of a insurance salesman who had a judgment, the judgment said that the death of the spouse was bad and the other spouse gets, does not get your insurance anymore. And the and the person who had that relied on it got remarried, but didn't tell anybody or didn't do anything about it until that person died. And the old wife still got the money. Because just not because it didn't happen, but because no one knew it happened. Yeah,

Will Jones  9:20  
that's part. I mean, it's it's the same story exists in the same respect with court records. And you don't have it written in a judgment if the court record isn't clear. Well, now you have something that can be enforced, because that's what's in the court record, or can be terminated because that's what's in the court record. But no one has told the court that that's happened, no one has changed it. So what happens say if somebody passes away, just like in your example, this beneficiary is listed right here. That's where it goes, we're not looking at you. Right. Same thing happens with judgments all enforce what's in the judgment is what the judge will tell you, not what you guys have been doing forever, right? It's me, but this is what I have to enforce.

Steve Altishin  9:59  
Are there times when you're looking at your judgment? And you're going to we're not doing this, we're now we're kind of doing that, and especially kind of thinking more on the parenting time and that kind of stuff. Does that mean that they should automatically go in and somehow get the judgment changed? Or there's some levels of like, is it really worth it? If we're not even sure we're doing this permanently? That kind of thing. So

Will Jones  10:28  
I'll tell you that every good parenting plan that I've ever seen, and all the ones that we can do, obviously, they say this residential schedule is for parents who can't otherwise agree. That's the first line of it. So the idea is, hey, don't bring it to court. If you guys are agreeing on something different, right? I have to work late Wednesday, can you keep the kid Wednesday overnight, don't go and modify the judgment for that Wednesday, it's not worth it. What's important for everybody to understand and a parenting plan is that's what's enforceable. So you guys are agreeing to whatever, everything's going fine. There's no problem. But if there is a problem, we as attorneys can only enforce what is inside of that parenting plan. So if you've completely deviated or done huge switches in things, or people have new jobs and new schedules and all that stuff, you have to know Look, we're gonna go back to the default, right? You guys stop agreeing at some point, the default is the parenting plan. And that's the only thing I can enforce. Not the new stuff that's happening, the old stuff that's in the parent. So

Steve Altishin  11:31  
there's no equitable estoppel. There's no latches, there's no none of that happens in a divorce decree.

Will Jones  11:37  
Conceptually, no. There's special circumstances everywhere, equitable estoppel, latches, things like that, for people who don't really followed the lingo that we use way too much here. Both equitable estoppel and latches are basically time defenses to things where the classic one under equitable estoppel and kind of bilateral is, is where an insurer says, Look, we're gonna pay you we're going to pay you we're going to pay, don't worry about it, and everything's fine. The statute of limitations on a claims runs and then they have no, we're not paying. That's an example of equitable estoppel, where the courts gonna go, oh, well, what can I do on the limitations, we're gonna go ahead and extend that retold out a little bit for you, that can happen in divorce decrees and enforcing them. The problem when you're dealing with enforcement is generally you're dealing with a term called contempt. Contempt is the willful violation of a court order or judgment. So it's tough to prove a willful violation of a court order or judgment. When the judgment tells you what you have to do, right? You're either doing what the judgment says or not. If you had a lateral situation where say, now there's no I've ever seen this before. Someone hasn't paid spousal support in five years, and they want to go latches, I haven't paid it five years, they haven't given me a hard time about it, I don't want to pay it. Well, we can still enforce that. It's a nice defense and a good try. But the courts gonna go no, there's a judge, and you're not following. And it's clear, you will owe it. Plus that deals with money, you can deal with collections, garnishments, and all that stuff. When you start talking about estoppel latches, that can happen, I suppose in some property division issues, or perhaps with interest or some very, very much more clear areas. But in parenting time estoppel latches, there are some temporary orders we could deal with if you're a modification to like a status quo that can kind of lock in what's happened over the last three to six months. But that's a separate order and outside of enforcing. So you've got a couple of different moving parts. But in a modification, there are temporary orders available. So there's some wiggle room, but they're still not enforcement, right? We're talking about a modification

Steve Altishin  13:51  
in modification, then talking about looking at your divorce decree, you can, it's probably pretty easy to find a change in circumstances that has occurred. And, and someone might say, Oh, look, I'm making $185 a month less than I was, and they're making a little bit more than they were, or something like that. But that doesn't always necessarily mean does it that the modification will occur. There's rules, as you know, what you can modify and how you modify it, what you need to show to modify it. We'll talk about that a little bit.

Will Jones  14:30  
So modifications in general. So one thing that we can't do, unless there's some really special circumstances, we can't modify property division, right. That's solidified, it's over once the disillusion is done, right. So the judgment lays that out, it's over. We can reopen some cases if say somebody concealed something or we got to put something in there. But generally, that's a closed book. It's done. Right. What you can modify is child support spousal support, parenting time in custody. Those are always subject to modification. So when you're talking about a modification, let's look at spousal support forks, you're talking a substantial and unanticipated change in circumstances. Right. So that has a couple of different terms in there that let you know when a modification might be possible. Substantial, unanticipated change in circumstances, right. So the kind of key component when you first look at this is substantial, right? If you go, Well, I got $1,000 Bonus last year, so I want to modify, or my ex spouse got $1,000 Bonus, and they make 100,000 a year, I want to modify because I should get a little more because they got an extra $1,000. Last year, the courts gonna go, that's 1% of what that person makes. That's not substantial. Don't bring that to us. We need something more. The next one we argue about all the time is unanticipated. What is unanticipated? That one turns exactly on what your judgment says, and what the findings in the judgment were back then. Right. So what's anticipated is retirement, unanticipated. Maybe kind of depends, I guess on when it happens. If the judgment says nothing, then it's probably going to be a substantial change in circumstances that wasn't anticipated because the judgment silent on it. If the original judgment says spousal support does know as my retirement is anticipated at age 65, well, now you turn 65, you retire. It's not an unanticipated change. Judgment says it's not in his anticipate. So you lose out on that. Substantial, unanticipated change in circumstances. What that means is going to vary quite a bit, depending on what's gone on. Child support is very much the same way. Substantial, unanticipated change in financial circumstances. But you do get that DOJ, the state can review that if you're using their services for collection, so they'll kind of do a periodic review anyway. Same rules roughly apply, except for it's for the benefit of the child. So anytime you recalculate child support, you're looking for accurate income figures, right? So somebody gets a new job loses a job, all that stuff. Substantial, unanticipated change in financial circumstances, we recalculate child support you the whole thing. child and spousal support, they're separate from custody and parenting time. But to clear something up for people while we're still in the financial maze here. spousal and child support become judgments that are due generally on the first of the month, depending on what the judgment says some judgment, say after the first half due on the 15th. And once those are issued, because the calendar rolls over, those are judgments and they're not modifiable, as soon as they're due. They're collectible. Somebody can. Somebody can say we're satisfied here, right? We've paid what was due, but they're not modifiable. So they're still enforceable. So if you don't do a modification of child or spousal support, every time they come due, now that money is not modifiable, you can't change it now not wanting to do so all modifications are prospective. So you want to make sure that if you are in that financial situation, you need to go ahead and deal with a modification before payments keep coming due, because I can't change them once they're due. So let's modification that kind of financial stuff, custody and parenting time. So parenting times easiest place to start. airing time is modifiable, when ever it's in the best interest of the child, right now, overall is best for the kid, okay, we'll deal with a modification. That could be any parent moves away, parent moves closer, could work that way to school change kid goes to private school, kids having health issues, one of the parents has gotten heavy into heroin knows what's going on here. But anything that is in the best interest of the child is reason enough to modify parenting. And it gets a little bit more complex when you deal with custody. So we have a custodial parent, the court said, Look, we think this is the better parent, even if it's in the best interest of the child, the court will change that. They want to know what's the substantial change to make me have to make this big of a switch. So just because it's in the best interest, which is parenting time. Now there has to be a substantial change first, before we do something that dramatic. What's that going to look like? Really kind of depends on the case. A big chunk of that which you see sometimes is parents may have joint custody, joint custody in Oregon only exist if both parents agree. So if one parent says I don't want joint custody, the court cannot order it will not exist in the court has to pick one. So if you're going from something from joint custody sole custody, the court has to pick someone you don't need that substantial change. You say I don't agree with it. The judge is gonna have to pick somebody or you're gonna have to agree to it. So substantial change best interest of the child if you're dealing with finances substantial amount anticipate a change in financial circumstances. So as you do

Steve Altishin  20:04  
the brings up a question is the parents agreeing to something? Or on the flip side, stopping agreeing on something, a substantial change. And what we think of that is if you've got joint custody, and one of the parents three years later says, I don't agree on joint custody, is that considered a substantial change? Or, and the flip side, maybe is that one parent has custody, and now they're agreeing on joint custody? I mean, can that be enough to be the substantial change?

Will Jones  20:47  
So you get a little bit interestingly, technical, right. So generally, to change custody, you need a substantial change. That's the rule. The problem is, is when you have joint custody, it only exists when the parents agree. So now the court has to pick somebody. So your substantial change rule is actually eaten up by the fact that joint custody only exists if they both agree. So now the court has to pick somebody. So you could consider that a substantial change. But really, it's kind of two conflicting rules that exist. Generally, if parents agree on something, whether it's one parent getting custody, or what a parenting plan looks like, something like that, the courts go, Yeah, that's fine. Right? We're not going to kind of generally the court doesn't do things, but sometimes they do. The courts are gonna go look, you guys obviously are getting along well enough to draft your own parenting plan and agree on things, we're not going to substitute our judgment for yours. You're the parents, more often than not when a judge has to make a determination, because the parents aren't agree. Right? If everybody got along, well, the courthouse would be a lot smaller, and I'd be out of jobs. So pros and cons there. But if parents agree, yeah, the courts usually they're going to just sign off on it. Unless there's something unbelievably weird.

Steve Altishin  21:59  
Or something like that. Yeah, you talked a little bit about enforcement, and then that contempt, which is like the hammer, and make the kind of think so you've dusted off your degree and says that you're supposed to do this, and you go to yourself, Oh, God. I mean, I can't do that mean, just, you know, they're just I can't comply right now. What can a person do? If they look at it go, you know, I really can't comply to this decree.

Will Jones  22:29  
I mean, so if you're in the, say, unfortunate situation of not being able to afford your spousal support payments, say, just to make that an easy example, you need to modify, right? Specifically, if you're looking at a long term problem, right here, two weeks between jobs, and you're going to be back on it, and two weeks, and you'll pay off your arrearages. Maybe not worth your time, but you lost your job, you've been unemployed for six months, and just ran out of savings you need to borrow, you just have the, I guess, bad part, if you look at enforcement of some of that stuff. And I've been involved in thankfully, on the prosecuting end of a lot of enforcement of non payment and things like that. Judges will say, because people will always say, Look, I don't have the ability to comply like that, which is an affirmative defense to contempt. I do not have the ability to comply with my $500 a month spouse. I have raked people over the coals on that, because the judge will tell you and I've heard judges say, and I've asked the questions myself, you have a car, you have car insurance, you bought gas, you bought food, you've determined to do something else other than follow the courts or if I'm the judge my judgment, right? You're saying you have the inability to comply, but you're not even trying, you didn't pay nothing. You didn't pay $5 or 500, you paid zero and bought other things. So judgments kind of take the cake when it comes to debts. They're as bad as you get in debts. They're enforceable. They're collectible, garnishment, all that stuff. So you should pay those first most of the time, because they're judgments. You want to change them if you need to, because that's as bad as judgments get that's as bad as debts get. So if you can't comply, you need to do something to get the judgment change, or somebody's going to enforce that at some point. And it's going to be with interest and you're probably going to end up paying attorneys fees.

Steve Altishin  24:13  
Yep, yep. And then got back just swinging back to the last thing I wanted to ask what you talked we talked about a little bit is is if you know something is if you're doing something different or your spouse is doing something different and don't want that to happen. Probably the worst thing you can do is just not do anything about it kind of wait it out to see if they get better. To see if the other person complains a because both sides by way to get out have something to lose.

Will Jones  24:49  
Exactly. Plus you end up in a situation here. Here's an example. Names redacted to protect the guilty and innocent About six, seven years ago, I did contempt for a guy who hadn't done some stuff. Went to the hearing judge ordered it and the judge said $50 a day until this whole judgment is satisfied. So every day $50 plus 9% interest, he still didn't do it, my client kind of ran a gas. And it's like, I've had enough of this, it's not that big of a deal to me anymore, don't do anything. So that's six, seven years ago, with a judgment out there holding him in contempt for $50 a day, plus 9% interest. I'm not even doing the math on seven times 365 times 50 is what he owes, according to the court record right now. Because he didn't go back and modify because he didn't satisfy because he didn't do those. So if you're going to do something, you got to do it. You got to get it done. And you have to understand that court records are going to follow, it's just the way it is. So if you need to make a change, you need to do something to get that change made. I love it. Well,

Steve Altishin  26:00  
well, we just blew through 30 minutes, which is normal. And, you know, so I'm really, again, want to thank you for being here, you know, talking about why you should look at your divorce decree not ignore your divorce decree. And you know, when it needs some change, how to get a change. So, thanks a lot. It was really very helpful.

Will Jones  26:25  
You betcha, Steve, if anybody out there needs any help. Obviously, we're pretty easy to find and happy to help out.

Steve Altishin  26:31  
I love it. And with that, thank you everyone else for joining us. And as well said, If anyone has any other first further questions on today's topic, you can post it here. We can get you in touch with us, and we can get you connected you can give us a call. And until next time, stay safe, stay happy and be well.

Outro:
This has been Modern Family Matters, a legal podcast focusing on providing real answers and direction for individuals and families. Our podcast is sponsored by Pacific Cascade Legal, serving families in Oregon and Washington. If you are in need of legal counsel or have additional questions about a family law matter important to you, please visit our websites at pacificcascadelegal.com or pacificcascadefamilylaw.com. You can also call our headquarters at (503) 227-0200 to schedule a case evaluation with one of our seasoned attorneys. Modern Family Matters, advocating for your better tomorrow and offering legal solutions important to the modern family.