So, you want to modify your court order.
Hands down, the most important aspect of a consultation to modify a prior order is to bring a complete copy of the order you are seeking to change. So many prospective clients come to a meeting seeking to terminate shared parenting without a copy of their Decree of Divorce and Shared Parenting Plan.
Or, a prospective client wants to modify spousal support and has the Decree but does not have the Separation Agreement, which actually outlines the terms of spousal support.
If you are meeting with an attorney to discuss the modification of a court order, make sure you have the FINAL, APPEALABLE ORDER that was entered into in your case.
If you cannot find a copy of that order, go to the courthouse and obtain a new certified copy before your consultation. I have seen prospective clients spend an entire meeting discussing their goals to modify a shared parenting plan, only to later discover (because they came without their paperwork) that they do not even have shared parenting.
Always err on the side of bringing as many documents relating to your case as you can uncover.
When a client comes in to meet with an attorney to discuss modifying a prior court order, it is important for the attorney to understand how the prior order came to be, exactly what the prior order says and for the client to be able to articulate what they want changed.
For example, if you want to modify the terms of a shared parenting plan that was entered into at the time of a divorce, and it has now been a few years since then, it is imperative to know the circumstances that surrounded the original order. Also, there are a lot of questions that a good attorney will want to ask when discussing a modification.
When you prepare to meet with an attorney about modification, be prepared to answer some questions about the initial case and what has happened since that time. For example, questions I may want answered would be:
How and why were the original terms entered into?
For instance, if dad does not have any overnights, what were the reasons for that? Was it due to a concern with dad, or because the child was a newborn who was still nursing? Was it intended to be short-term and that was not reflected in the agreement, or was it long-term? Does the original order, that you are now seeking to modify reflect the agreement you intended to enter into, or do you believe there were errors with it?
What aspects of the prior order no longer work?
Often, a prospective client says “I want to change this,” but then they struggle with the details. For instance, a client may say they want to terminate shared parenting and want sole custody. Their reason, though, may be that they are not seeing the child enough and feel they need more time.
In Ohio, where I practice, getting more time can be done without changing custody. It is often better to explain what hurdles stand in your way, or what is not working with the order, as it stands, than to try to use legal jargon. A good attorney can take a client’s goals and turn it into the appropriate motion to file with the court.
What do you want the situation to look like realistically after modification?
On a post-decree modification, a prospective client may say, “I want to stop spousal support altogether.” However, the prior order clearly states that spousal support will not terminate except for death or remarriage of their ex.
So, if the reality is that you have retired since the prior decree was entered, and your income has been cut in half, that may definitely mean a significant downward modification of spousal support, but not termination (if the order did not allow for termination).
It is critical that a client has a realistic understanding of what their order does or does not allow. Or, if you do not understand the prior court order and what it means, it is most helpful to start out an initial consultation with asking the consulting attorney to explain the important provisions to you.
Sometimes, a prospective client wants to get a new court order to do something that they can already do in the prior order — maybe they were unrepresented the first time or, more likely, they had an attorney who did not sit down and explain all of the terms of their court order.
If a prospective client just needs clarification on their order, a consultation with an experienced and knowledgeable attorney will be the best attorney’s fees ever spent.
What has changed since the last order?
Whether we are discussing modification of spousal support or parenting time, the most often asked question by a judge is, “What has changed?”
Typically, if there have not been any changes in the parties’ situation or the children’s situations since the last court order, a judge or magistrate will not be reluctant to make changes to the order. Modification of a prior order is not an opportunity to get a second bite at an apple if things did not go your way on the initial custody or support matters.
Now, I have certainly had clients come in with buyers remorse about the terms by which they settled and agreed the first time around, and we have worked with them to find the most advantageous method of improving that situation, but it is certainly not a guarantee in court.
Be prepared in your first meeting to say all of the things that are different about any party or child’s situation from the time the last court order was file-marked.
And finally, beyond remembering your paperwork, the best thing you can do to prepare for a consultation on a modification is to ask what you should bring at the time you schedule your consultation.
Ensuring you bring all relevant documents and that you have a clear picture of what you want changed and why the modification is necessary will help you get the most out of your time and money during your modification consultation.
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.”