While aspects like property division and debt allocation are generally not altered after they have been decided in a divorce, the final agreement is not completely set in stone.
It is possible for many aspects, such as alimony, child support payments or custody issues, to be revisited later if circumstances change.
However, the exact conditions for modification of the final agreement varies by state, so it is important to speak with a licensed attorney in your area to find out if your circumstances fit the criteria for adjustments.
Modification of Alimony
Support obligations can be changed from a temporary or final order if there is a mutual agreement, or if the court finds that there has been a change in circumstances.
A modification of support alimony may be allowed based on a change in the conditions used by your state to award support alimony. Those factors can vary, as can the likelihood of modification, so it is critical to consult with a lawyer.
Change of circumstances that can lead to a modification of support alimony include the remarriage of the spouse who was receiving support alimony, voluntary cohabitation with the spouse receiving alimony, material change in the payor’s income, substantial increase in the payee’s income and increased needs of the payee.
For instance, if a spouse was awarded support alimony at the time of divorce due to a medical condition that was expected to improve, the court could have issued a gradually decreasing award of support alimony. If rather than improve the medical condition actually worsened, the court could consider this a change in circumstances that warrants increased alimony payments.
On the contrary, if the payor’s income dramatically decreases outside of their control, the court may decrease the support alimony obligation appropriate with the new income level.
Modification of Child Support
Similar to alimony, the change in circumstances for modifying child support must be related to the factors that go into determining the original child support amount.
Those changes can relate to the following factors: income, number of overnights each parent has with the child, cost of health insurance, cost of child care, an increase or decrease in the needs of the child, a minor child reaching the age of majority or a change in any other element that your state uses to determine child support obligation.
A change in income is a fairly common reason for modification; however, it cannot be the result of a parent attempting to circumvent the child support agreement.
For example, a parent cannot quit a job or take a lower paying job for the purpose of decreasing the child support requirement and expect to have the obligation modified by the court. In those cases, the court can continue to order the same amount as if the parent were at the old income level.
The effective date of the modification depends on where you live, but it can frequently be enacted as soon as the parent seeking the modification files the request in court.
This makes it important to seek relief as soon as the change in circumstances is known.
Modification of custody and visitation
Modification of legal custody, physical custody, visitation and possession can vary greatly by state, so it is critical to consult with a licensed attorney familiar with how modifications work in your area and who is up to date on your circumstances. It is also prudent to consider what factors are involved with modification before you enter into an agreed final order.
Parents can agree to make changes to custody or can seek relief from the court to make those changes if the circumstances meet the standards of your state.
There is generally a higher standard for modifying legal custody (the parent who makes major decisions for children) than there is for modifying physical custody, visitation and possession of the children.
If one parent was awarded sole custody in the final order and the other parent wants to modify that order, the parent wanting to modify needs to prove a material change in circumstances related to the parent awarded sole custody.
For example, if the parent who was not awarded custody had substance abuse issues at the time of divorce, later goes through rehabilitation and wants to seek sole custody, that parent will not be successful.
While the changes in circumstance were positive, they are unrelated to the parent who was awarded full custody.
It is also critical that there be an actual change in conditions. If the circumstances existed at the time of the final order, there has not been a change that will warrant a modification.
It is the burden of the parent seeking the modification to prove a change of circumstances that affects the welfare of any children and warrants a change in custody.
Terminating joint custody and requesting sole custody often requires slightly lower standards. The parent seeking the termination of joint custody usually needs to prove that changing the agreement is warranted because joint custody is no longer in the best interests of the children.
This could be requested for many different reasons, such as a significant lack of cooperation between the parents in making decisions that impact the children, if one parent develops a substance abuse issue or when there is violence or other misconduct by one of the parents.
Changing only physical custody and visitation is usually the easiest of these agreements to modify.
Again, the standard can vary by state, but it may be as simple as showing that a change in visitation is in the children’s best interests. Some states also consider the preference of a child who is able to intelligently understand and express such a desire, but there is usually a minimum age for this to apply.
Of course, parents may always mutually agree to change the visitation times to better fit their schedule, but it’s best to have that change officially approved by the court. If the change in your agreement is not in filed in a modified order, the agreement cannot be enforced.
For more information on whether you fit the criteria for modifying any aspect of your final agreement, speak with a licensed family law attorney in your area.
Mat Camp is a former Lexicon Services Online Editor, who focused on providing a comprehensive look into all aspects of the divorce experience. On MensDivorce.com, he concentrated on issues, such as parenting time, custodial rights, mediation, the division of assets, and so much more.
Mr. Camp used the wealth of experience of Cordell & Cordell attorneys to bring tangible answers to reader questions in Ask a Lawyer articles, as well as offer a step by step process through the divorce experience with Cordell & Cordell Co-Founder and Principal Partner Joseph E. Cordell in Divorce 101: A Guide for Men.
Mr. Camp used thorough research to highlight the challenging reality that those who go through divorce or child custody issues face. He helped foster the continued success of the Men’s Divorce Survival Guide, the Men’s Divorce Podcast, and the Men’s Divorce YouTube series “Attorney Bites.”