When the original Divorce Agreement or Court Order no longer works
No matter how hard you try to anticipate the future, and fashion agreements in your separation and divorce cases, or when the court’s original order hasn’t kept up with your changing lives, there arrives a need to modify the terms that no longer address your needs. They simply don’t work any longer. It is then that you need to go back to your ex or the court and request changes (modifications).
Property and Debts – the court cannot change the Final Order regarding these items once the divorce becomes final. Some States have what are called Nisi Periods, which are an extension of time after the divorce has been granted where parties may object to terms of the divorce. In States that use rule Nisi, courts issue a decree absolute if no one shows cause why the terms should be changed, regardless of unanticipated changes of circumstances after the divorce. Nisi periods are usually for 90 to 120 days after the divorce decree.
The areas that invariably need modification include child custody, child support, spousal support (alimony), parenting plans or proposed relocation of one of the parents.
Courts are reluctant to change the terms of child custody, child support and other orders in order to maintain stability in children’s lives. The legal basis for modifying child custody and visitation orders is a significant change of circumstances. Requests to modify orders are generally entertained when a petitioner claims that there has been changes of circumstances significant enough to warrant modification. The parties can agree on modifications without going back to court, but if one parent reneges on the new agreement, there is no recourse for the other parent except to go back to court. States generally accept the following as meeting the definition of significant:
- relocation of either parent
- frustration of visitation
- acts of domestic violence
- jailing of custodial parent
- preference of the child if of a suitable age (usually teens above 13 or 14)
Once the court has established that a particular custodial arrangement is in the best interests of the child, it isn’t obligated to re-examine the issue but rather will preserve the arrangement unless some significant change in circumstances indicates that a different arrangement would be in the child’s best interest. The change of conditions must be so affecting the minor child that modification is essential to the child’s welfare.
- Change in Lifestyle – one parent believes that their child is living in a dangerous situation while in the care of the other parent, and wishes to eliminate the exposure to any physical and emotional harm
- Abuse – one parent is concerned the other is a frequent user of drugs or alcohol, and wants only supervised visitation or a change in the frequency of visits.
- One parent is relocating out of State (geographic move)
- Interference – the custodial parent is refusing visitation by the non-custodial parent. The non-custodial parent bears the burden of persuading the judge that the change is in the child’s best interest
Children who are of sufficient age and capacity to reason so as to form an intelligent preference as to custody can express their desires in States that permit the input of minors. Courts have no mandatory duty to follow the child’s wishes, however.
- prove that a new custody plan is in the child’s best interests
- you assume the burden of submitting sufficient evidence of a change that warrants modification. There must be such a showing so affecting the child that modification is essential to the child’s welfare
- the present custodian has agreed to the change of custody
- the child has been placed in the other parent’s home by the custodial parent and is integrated into that home; or
- the harm likely to be caused by such a change of environment is outweighed by the benefit of placing the child in the other home.
State laws generally create a presumption in favor of retaining the present custodian. That presumption can be rebutted with evidence. The court must consider the following factors in deciding what is in the child’s best interest:
- the wishes of each parent
- the wishes and concerns of the child
- the child’s interaction with the parents, siblings, and other people who impact the child (neighbors, friends, teachers)
- the child’s adjustment to the home, school and community
- the mental and physical health of all persons involved
- the parent most likely to honor and facilitate visitation
- whether or not a parent has failed to make ongoing child support payments
- whether or not the custodial parent has willfully denied visitation to the other parent
- whether or not either parent is planning to establish a residence out of state; and
- whether or not either parent has abused children or been a perpetrator of domestic violence
One party may discover that the ex is now making significantly more money than s/he was after the divorce, and files a motion to modify child support amounts. Or the custodial parent’s income has declined significantly. If the requested change is approved, the court may modify the order back to the date the Motion to Modify was filed with the court. States generally restrict the amount of time between requests for changing the terms (typical is not more frequent than every 2 years).
Absent an agreement between the two, one party must demonstrate that a material change in circumstances has occurred. There are no hard and fast rules for determining whether a change in circumstances is materially “enough” to justify a change. Courts will generally consider:
- whether the change occurred after the entry of the order sought to be modified
- whether the change was not known or reasonably anticipated when the order was entered (not applicable to changing residential schedule)
- whether the change is one that affects the child’s well-being in a meaningful way
A material change of circumstances does not require a showing of a substantial risk of harm to the child, and may include significant changes in the needs of the child over time. Your State may include any or all of the following:
- changes relating to age
- changes in the parent’s living or working condition that significantly affect parenting
- refusal or failure to adhere to the parenting plan
- a change in primary custody (who the child lives with most of the time)
- a significant change in visitation regarding the supported child
- a significant change in the income of either parent
- incarceration of the noncustodial parent (NCP)
- the NCP starts receiving General Relief (GR), Supplemental Security Income (SSI), or Veteran’s Benefits
- military deployment (see Military for more information)
1.) determine if you can get an agreement with the child’s other parent. You must agree on Physical Custody, Legal Custody, Visitation (or Parenting Time), Child Support details
2.) get the correct forms together:
- Custody forms – Petition to Modify Custody and any other required forms
- Support Forms – your proposal for child support
- Hearing forms – determine what hearings your State requires and get the correct forms.
3.) Complete the forms (they may come with instructions or you can ask your local Court Clerk
4.) File the forms with the appropriate court
5.) Get it all together for the hearing. It’s wise to check your state’s custody modification code to determine what factors the court will use when determining custody in your state
6.) Attend the hearing – look and dress businesslike, be on time, review your court’s web site for hints on how to follow the rules of the court.
7.) The court will mail to you a decision, usually within a few weeks. Calling the Court Clerk ahead of time won’t speed up the process.
These requests are rooted in significant changes in circumstances as well. Examples might include a party receiving spousal support suffers a life-changing illness that negatively impacts his/her ability to be self-supporting, or one party discovers the book the ex was writing while they were married has been published, or the ex has been made partner at the firm with a significant raise in income, or a party has discovered that the ex is cohabiting with another adult and therefore is no longer qualified to receive spousal support, or, during the pendency of divorce, the party receiving temporary spousal support realizes that it is inadequate. In most jurisdictions, more than a mere change in circumstances to justify modification of alimony. The change must be substantial. It also must be shown that the change was not contemplated by the parties at time of the most recent court order concerning alimony.
Courts require that formal requests be made to the court, usually in the form of Motions to Modify. There is generally a charge for this court filing ($45-$150). If your income is low enough, you may qualify for a waiver of the fee.
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