Which Motion Do I Need?

About the motions

To change or enforce your court order, you will need to make one of three “post-judgment motions.” “Post-judgment” just means you already have a final order and you are looking to do something after the final order was given. A “motion” is a request you file with the court asking the court to do something—in this case, to change or enforce your order. The three motions are:

  • Motion to Modify
  • Motion to Enforce
  • Motion for Contempt

Which motion do I need?

Motion to Modify

Use this motion if you need to change your order. By filing this motion, you are asking the court to change something in your final order. You must be able to show that there has been a "substantial change in circumstances" since the last court order. You can’t file a Motion to Modify just because you don’t agree with the order.And usually, you shouldn’t file a Motion to Modify too soon after the court gave the final order.

If things have changed in your or your children’s lives, you can ask to modify almost any part of the final order based on the changes in your life. Some examples of what you can change are:

  • Child support, up or down
  • Child custody issues (like where a child lives most of the time, or who makes decisions for the child)
  • Visitation issues (how often each parent sees the child)
  • Spousal support (alimony)

Note: If your first order was a divorce, you will probably not be able to change the parts of your divorce that split up property or possessions.

What is a “substantial change in circumstances?”

This means that things in your life or your children’s lives have changed since the final order, and because of those changes, the final order you got from the court does not work anymore.

Some things that could count as a “substantial change” include:

  • A change in your income or the other party’s income (like getting or losing a job) that would change the child support order by 15% or more, up or down.
  • A change in a parent's schedule or where a parent lives that affects the parent’s ability to care for or visit the child.
  • A change in the ability of one parent to be fully involved in the life of the child.
  • Safety issues which affect the life of a child.
  • One parent not working well with the other.
  • A change in a party's financial situation (like getting or losing a job) that might call for a change in spousal support (alimony).

If 3 years have passed since your most recent child support order, you can file a motion asking for a change in child support without having to prove a "substantial changes of circumstances."

Note: There are many more things that might be a “substantial change of circumstances.”

Motion to Enforce

Use this motion if other party isn’t following your order and you want the court to enforce it.

Motion for Contempt

This is an alternative to the Motion to Enforce (see above). It is more serious. If you file this kind of motion:

  • You need to get a Judge to give you permission to file the motion.
  • Only a Judge can hear your case. You may have to wait longer to get a hearing with a Judge.
  • The forms and court process are easier, compared to a Motion for Contempt.
  • On a Motion to Enforce, if you have children with the other person, the Judge will review your case up front, to figure out the steps your case will take. They may refer you to Mediation, especially if the only issue is child support. At mediation, someone called a Mediator will try to work things out between you and the other person. These steps are more informal than a Judge-held court hearing and easier to handle without a lawyer. On a Motion for Contempt, you will have a formal hearing in front of a Judge, and will not have a chance for Mediation.
  • You will have to prove more at the formal hearing to get a Contempt Order. Your “burden of proof” (what you have to show to get what you want) is higher than it is for a Motion to Enforce.
  • You will have to prove that the other person did not follow the order, and that the other person had the ability to follow the order.
  • A Judge may order more serious punishment, including jail time.

Using a Motion to Enforce is usually simpler and should work to get what you need. But, if the other party is ignoring an earlier Order to Enforce or they just won’t do anything the court orders, you might want to go the next step by bringing a Motion for Contempt. A Motion for Contempt is a little more complicated, but we do have step-by-step instructions on how to do this, too.