Many people assume once they are divorced and a Judge has entered an Order that the terms of that Order are binding and never end. Under certain circumstances, this is not true. There are several situations where a judge may modify a “final” divorce order. The modifications that can occur are discussed under Tennessee law, but similar laws exist in other states as well.
First, a judge may modify custody and parenting time to protect the safety, health and well-being of a child until the child turns 18 or graduates from high school, whichever occurs first. This means that even though a parent may be awarded primary custody and significant parenting time with a child, the parenting time, and even primary custody, may be changed at a future date if events occur after the divorce that affect the safety, health and well-being of the child.
The court may take any action necessary to protect children after a divorce. For example, if a parent develops a drug or alcohol problem that potentially can cause harm to the children, or a parent brings a dangerous person into the children’s life, or a parent engages in conduct that is considered harmful or detrimental to the children’s health and well-being, that parent runs the risk of losing parenting time.
Another unhappy surprise for some can come when a party does not enforce their rights under a divorce order. This may be referred to as “sleeping on your rights.” The laws of Tennessee require a party to a contract to enforce it within a certain time once it is breached. The length of time can be as long as 10 years. But a recent Tennessee appellate opinion held that the 10 year period begins at the date the contract was entered into, not at the date it was breached.
This means if there are required payments under a final divorce decree that are not made by the spouse required to make them, the spouse entitled to receive them may waive the ability to enforce the order if a new claim is not filed with the court within a certain period of time. Accordingly, failure to act within the appropriate time frame can result in waiver of the right to receive the payments, even though they were previously ordered to be made.
In the recent case of Proctor v. Proctor, husband and wife divorced. Husband was required to pay wife $50,000, with an initial payment of $25,000 and then five annual payments of $5,000 each. Husband and wife reconciled after the divorce and lived together for five years. When this arrangement failed, wife sought to enforce the $50,000 award against husband.
The appellate court found even though the violation of the court order occurred within 10 years of the time husband was supposed to make certain payments to wife, it occurred more than 10 years after the entry of the divorce order. The appellate court, therefore, found wife’s cause of action was too late and it dismissed her lawsuit entirely. Wife lost $50,000.
Understanding not only what one’s rights are but when they must be pursued is critical, not only during a divorce but after a divorce. Obtaining appropriate legal advice may avoid a very unfortunate and expensive mistake concerning payments in a divorce order.