Can you go back to court after a divorce is final

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If there is a substantial change in circumstances after a final divorce decree is issued, it is possible for your ex-spouse to take you back to court to modify certain aspects of your divorce agreements. Typically, courts won't reconsider the original property or debt division, but modifications of spousal and child support, custody and visitation are not uncommon when you can show a substantial enough change in circumstances to justify the modification.

Modification Agreement

If the former spouses agree to modify terms of the original decree, the agreement must be in writing and submitted to the court. Sometimes a hearing is held to ensure both parties actually agree to the modified terms as stated in the agreement. Once the court is satisfied, the agreement is signed off on by the judge and becomes a court order, which is binding on both spouses. Courts always encourage former spouses to agree on modification terms, rather than be pitted against each other, as this saves the cost of litigation and prevents the courts from having to make a decision for the spouses as to the modified terms, which neither spouse may like.

Motion for Modification

If one of the former spouses wants a modification but the other does not, the process of modifying the original divorce decree begins with a motion for modification. The motion is filed with the court that issued the original decree. The motion must then be served on the other spouse.

Response and Hearing

After the motion is served, the other spouse typically has a matter of days or weeks in which to file a response, after which a hearing is held. If you want a modification, it's up to you to present proof of the change in circumstances that warrant the modification. If the motion is to modify custody, child support or visitation, you must also present evidence to show the court why the modification is in the best interests of the children.

Substantial Change in Circumstance

The accepted ground for modifying a final divorce decree is a substantial change in circumstances. For example, if your ex-spouse was ordered to pay spousal or child support and gets a substantially higher paying job, this may warrant a recalculation of the support amount; or if your ex-spouse with joint custody begins abusing the children or drugs and alcohol, this may warrant a change from joint to sole custody.

Enforcement of Original Decree

If your ex-spouse fails to comply with the original decree, you can file a motion for contempt and seek enforcement of its terms. Failure of the other spouse to comply after being held in contempt of the original decree can result in criminal charges, fines or jail time. Examples of instructions in the original decree that a spouse may not comply with include payment of child support, adding minor children to a work health insurance policy, or adding the former spouse as a beneficiary on a life insurance policy for benefit of the minor children.

Failure to Pay Child Support

Failure to pay child support ordered in the original divorce decree may result in the state taking action to enforce payment. This means the state, rather than the former spouse, might take the non-paying spouse back to court, for example, to obtain wage garnishment of the monthly ordered amount. This type of action does not require the former spouse to make a motion to the court or pay any of the expenses involved in the action.

If you have received a copy of an Application for divorce, this means your spouse has applied for a divorce and you have been served. In a sole application, your spouse (who filed the application with the Court) is known as the applicant and you (as the other party) are known as the respondent.

You should read the application as soon as possible and acknowledge you have been served.

What documents should I receive?

To be properly served, you should receive the following documents from your spouse:

• a copy of the Application for divorce
• a copy of the Marriage, Families and Separation brochure
• a blank Acknowledgment of service form, to be signed by you. See How do I acknowledge I have been served? below
• a copy of the Affidavit for eFiling signed by your spouse, and
• any other documents filed by your spouse at the time of the Application for divorce including the Marriage Certificate, any affidavitin support. These additional documents will vary.

How do I acknowledge I have been served?

When you were served with the Application for divorce, you should have also been provided with a form called an Acknowledgment of service (Divorce). You should sign the Acknowledgment of service (Divorce) and return it to your spouse. If you were served:

• by hand (in person, by someone other than your spouse, handing you the documents), you should have already signed the Acknowledgment of service (Divorce) and returned it to the person who served you.
• by post, you should have been provided with a pre-paid envelope. Place the signed Acknowledgment of service (Divorce) into that envelope, and post it like any other letter. You should do this as soon as possible. If you do not receive a pre-paid envelope when you are served, you are still required to sign the Acknowledgment of service and post it to your spouse.
• via your lawyer, your lawyer should sign the Acknowledgment of service (Divorce) on your behalf, and provide it to your spouse.

The applicant will then file the signed Acknowledgment of service with the Court to show that you have been served.

What else do I need to do?

If you agree with the facts in the application and want the divorce granted, you are not required to do anything further. You are also not required to attend the hearing. See Divorce hearing for details.

If you believe there is an error in the Application for divorce filed by your spouse or you do not want the divorce to be granted, you will need to file a Response to divorce as outlined below.

If the divorce is granted, it will be finalised one month and one day later, unless a special order is made by the Court to shorten that time. You will then be able to access your divorce order online from the Commonwealth Courts Portal. For details see How do I prove I am divorced?.

What if the application has errors of fact?

If you want the divorce granted but disagree with the facts in the Application for divorce, you may file (and serve) a Response to divorce. You need to state which facts you disagree with in the Response to divorce.

The errors might, for example, be that dates of birth are incorrect or the details regarding the children have changed. If you file a Response to divorce, you must attend the divorce hearing.

Can I oppose a divorce application?

If you do not want the divorce granted, you must complete, file and serve a Response to divorce and attend the divorce hearing (see Divorce hearing).

If you have been separated for more than 12 months, you can only oppose the divorce if:

• there has not been 12 months separation as alleged in the application, or
• you allege that the Court does not have jurisdiction to grant the divorce.

Note: jurisdiction means that you do not believe the Court has the legal power or authority to make a decision, such as a divorce order. See Can I apply for a divorce? for details.

You need to clearly set out the reasons why you do not want the divorce to be granted in the Response to divorce.

When do I file the Response to divorce?

If you want to file a Response to divorce, you need to file it:

• if served in Australia – within 28 days of the application being served on you, or
• if served outside of Australia – within 42 days of the application being served on you.

For information about filing the Response see How do I eFile?

You must also serve the Response to divorce on your spouse. See How do I serve family law documents? for a step-by-step guide.

If you file a response, you must attend the divorce hearing. If you do not attend, the Court may decide the divorce application in your absence. See Divorce hearing.

Practice directions

Practice directions are procedural guidelines issued by the Court. They complement legislation, rules and regulations. They provide specific direction about the practice and procedure that must be followed in certain types of proceedings.

Practice directions are issued by the Chief Justice/Chief Judge upon advice of judges of the Court, pursuant to the Court’s inherent power to control its own processes, as well as the power under the Federal Circuit and Family Court of Australia Act 2021for the Court to give directions about the practice and procedure to be followed in a proceeding.

In general, practice directions are issued to:

• complement particular legislative provisions or rules of court
• set out more detailed procedures for particular types of proceedings, and
• notify parties and their lawyers of matters which require their attention.

Below are links to the practice directions that apply to this area of law:

• Family Law Practice Direction – Divorce proceedings (FAM-DIVORCE)

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