After a divorce is final, you may find that the terms no longer fit your circumstances or the circumstances of your children. Under limited conditions, you may request a modification of your divorce decree.
Generally, you must first show that there has been a material and substantial change in circumstances since the controlling order was entered. If your divorce was entered based upon an agreement of you and your spouse and did not go to trial, this change does not need to be as significant as it would if your case went to trial. If your case was decided by a judge at trial, this change in circumstances cannot be one that was anticipated or foreseen (or could have been foreseen) at the time of the divorce, such as a change in jobs or planned relocation. The judge will look for any evidence in the decree of divorce itself and the trial proceedings to determine if the circumstance was foreseen or foreseeable at the time of the divorce. If so, you may be barred from making any changes to your Decree.
Modifying Child Custody or Parent Time
If you are requesting that the court modify an order regarding your children, the judge must make a second determination after deciding whether there has been a substantial change in circumstance.
The court must determine whether modifying the order would be an improvement for and in the best interest of the child(ren). If the case is contested, the parties will have to present evidence of both the change in circumstance and best interest. Examples of substantial changes after the controlling custody order may include that the parents have remarried, the parents have moved to new communities, or that the child needs to change schools. Proving that the modification you are requesting is in the child's/children's best interest rests on multiple factors that are weighed differently depending on the specific facts of your case. However, generally, the court's like to see consistency and continuity in the child's life, and a strong bond between the child(ren) and parent.
Modifying Child Support
Often a modification of child support goes hand in hand with a modification of custody; but there could be other reasons to request a modification, such as a permanent change in your ability to earn an income.
A child support order can be modified by motion or petition if it has been three or more years since the order was entered and:
- there is a difference of 10% or more between the support amount as ordered and the support amount as required under the guidelines; and
- the difference is not temporary; and
- the proposed child support amount is consistent with the guidelines.
Additionally, you may petition for a modification of child support if it has been less than three years since the order was entered and there has been a material change:
- in custody; or
- in the relative wealth or assets of the parties; or
- of 30% or more in the income of a parent; or
- in the employment potential and ability of a parent to earn; or
- in the medical needs of the child; or
- in the legal responsibilities of a parent for the support of others; or
- in the availability or cost of health care coverage; or
- in work-related or education-related child care expenses of the payor or the payee of child support; or
- due to the emancipation of a child.
The material change must result in a difference, which is not temporary, of 15% or more between the support amount as ordered and the support amount as required.
As with other requests to modify a final order, if there are substantial and material changes in circumstances not foreseeable at the time of divorce, either you or your ex may request that the court modify alimony. The court cannot modify alimony to address needs that did not exist at the time of the divorce, unless there are special reasons for doing so.
If your ex was ordered to pay you alimony but fails to do so, you can file a motion asking the court to enforce the alimony order. The court can issue a judgment for past due alimony. The court can also find him/her in contempt of court and order your ex to pay a fine or serve time in jail. Miller Family Law can help you modify or enforce your alimony order.