IS IT TIME FOR A CHANGE?
MODIFICATION OF DIVORCE AND PATERNITY JUDGMENTS
As we all know, as time goes on, things change. People move. They change jobs. Children grow. If things change enough, it may become necessary to modify, or change, parts of the divorce judgment. This is especially true where children are involved.
MODIFICATION OF CHILD SUPPORT
If you are divorced, and you were a parent at the time of the divorce, then odds are there is a child support order as part of your divorce judgment. In
Back to the Future
As I stated above, things change. Even those divorce judgments based upon a thorough and well written agreement, commonly called a separation agreement or a marital settlement agreement, can’t predict the future. Jobs are lost and new jobs found. Health insurance goes up. Day care costs may go down.
If things change enough, what was a fair and workable child support amount at the time of the divorce may become a crushing burden to one ex-spouse and an unfair windfall to the other. Fortunately, those parts of a divorce judgment relating to children can be modified if there has been a material change in circumstances since the judgment was made.
Easy or Hard
If the guidelines calculation now results in a child support amount that is at least 20% higher or lower than the amount being paid under the old order, then the judge is very likely to change the child support. If both sides agree that this change should happen, then a joint petition to modify child support (see the following link for the form), updated financial statements (see the following links for the two types of court required financial statements) Short Form Financial Statement Long Form Financial Statement, and a child support guidelines worksheet (see the following link for the worksheet form) Guidelines Worksheet can be filed with the court. Unless the judge believes there is something wrong and decides to call the parties in for a hearing, the joint petition to modify child support will be allowed, by the judge. That new child support amount becomes a judgment of modification that goes into effect the date the judge signs it. The joint petition is, as you may have guessed, the easy way to change child support.
If one side or the other believes it is time to change the child support amount, and the other side does not agree to the need for a change or the proposed new child support amount, then the side seeking the change must file a complaint for modification, updated financial statement and various other documents with the court. The side seeking the change must then get a summons from the court and serve that summons, and copies of all the other papers that were filed, on the other side. This modification case then works its way through the court (motions for temporary orders, case management conference, pre-trial conference, status conference and then trial) until, after the trial, the judge decides if child support should change and, if so, what the new child support amount should be. As you have probably guessed, this is the hard way.
It’s Now or Never!
One of the most important things to remember about child support is that the law does not allow judges to change child support that is already due and payable unless a complaint for modification has already been filed and served! In other words, there is no way to retroactively change the amount of child support for any time period before the service date of the court summons and complaint for modification on the other side. What this means is that, unless you and the other parent agree on the new child support amount and you will be filing the above described joint petition and other papers with the court very soon, you must file and serve your complaint for modification as soon as possible.
People commonly make the mistake of believing that unpaid or overpaid child support can be “fixed” later. That is wrong. Every week that goes by without a complaint for modification or joint petition to modify child support on file is another week that the full amount of ordered child support must, sooner or later,be paid in full, no matter what the court may order later.
MODIFICATION OF CUSTODY, VISITATION, OR PARENTING TIME
In every case where the husband and wife had dependent children at the time of the divorce, the judgment will contain some sort of provisions regarding the custody of the children and the time they will spend with each parent. These provisions may be as simple as shared legal custody, children to reside primarily with mother (still the most common arrangement despite the steady rise in custodial fathers) and reasonable rights of visitation to be determined by agreement of the parties. Here again, things change. What was working at the time of the divorce may no longer be what is in the best interests of the child(ren).
Father (Mother or Judge) Knows Best (Interest)
A good rule of thumb to remember in divorces, or any other court case involving children, is that the judge does not care about the mother or the father. The judge cares about the child(ren). No judge is going change custody, or anything related to custody, unless the judge believes that the change is in the child’s best interest. Also, as with other types of divorce judgment modifications, the court will not make any changes to the existing judgment until the judge is satisfied that there has been a material change in circumstances since the last judgment was entered.
Change is in the Eye of the Beholder
There is no simple definition of what constitutes a material change of circumstances. However, there are certain events that most judges agree constitute a material change of circumstances with regard to custody, visitation, or parenting time. Perhaps the best example is the non-custodial parent wanting or needing to move for a new job or to be closer to family. The distance between the homes of the parents after the move may be such that previous visitation or parent time arrangements are no longer workable. If the parties agree as to what the new arrangements need to be, the judge is very likely to go along with them and enter a judgment of modification including those agreed new arrangements. If the parties cannot agree, there will need to be a trial. After the trial, the judge will decide if a change needs to be made and what the new arrangements will be.
Another common material change of circumstances, especially in cases where the children were young at the time of the divorce, is the children getting old enough to express a legitimate desire for some sort of change. A common example of this is boys reaching their teenage years and wanting to spend more time with their fathers. Here again, if the parties agree, the judge will likely go along and enter the requested judgment of modification. If not, there will be a trial and the judge will decide what, if anything, will change.
No Do Overs!
If you are thinking of using a complaint for modification to get the custody, visitation, or parenting time that you thought should have been part of the original divorce judgment, you are wasting your time. If hindsight has convinced you that what you agreed to, or the judge ordered after trial, at the time of the divorce is not what you want, there is little you can do. Remember, before you are going to get a judge to modify the divorce judgment you must convince the judge that since the divorce, there has been a material change of circumstances and the change in custody, visitation, or parenting time you want is in the children’s best interest.
If you believe that the other side is no longer a fit parent, you can file a complaint for modification seeking changes in custody, visitation, or parenting time arrangements to ensure the safety of the child(ren). You can even get into court right away on an emergency basis if the child(ren) is (are) in danger.
You must bear in mind that the judges view accusations of unfitness with great skepticism unless those accusations are accompanied by very powerful independent evidence of unfitness. As the party seeking the modification, you have the burden of proof as to the material change of circumstances (the unfitness of the other parent) and the what new custodial, visitation, or parenting schedule changes are necessary to protect the child(ren).
Very often, requested changes in custody, visitation, or parenting time will have the effect of changing child support. If, for example, a child that was living mostly with the mother will now be living mostly with the father, child support from the father to mother will end and child support from the mother to the father will begin.
As you might imagine, such custody related child support changes can become the tail that wags the dog. The judges take a very dim view of anyone seeking a change in custody, or blocking a seemingly appropriate change in custody, because that parent is trying to escape from or hold onto child support. Judges can and will “punish” parties that put their financial wants above the best interests of the children. The judge can order one side to pay the other side’s legal fees and/or make custodial, visitation, or parenting time orders that reflect the judge’s conclusion that one side or the other is in it just for the money.
MODIFICATION OF PROPERTY AND/OR DEBT DIVISION
Unless you can show that the property and/or debt division included in the original divorce judgment was wrong because of fraud by the other side that could not have, in the exercise of due diligence, been uncovered at that time there is no way to re-open the property and/or debt division portion of the that original divorce judgment.
The information herein is a brief discussion in general terms of some of the more important concepts related to modification of divorce and paternity judgments. Outcomes in court in individual cases are dependent on the facts of each case, the strength of the evidence, the proper presentation of that evidence and the often changing state of the law. Those who use this information as a substitute for representation by an experienced attorney well versed in this area of law do so at their own risk.
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