Post-Divorce Modifications: What They Are and What They Require
July 15, 2015
The only constant is change and laws affecting families keep that in consideration. While there are some aspects of divorce proceedings that remain permanent, such as property or debt distribution, other elements face change even after a divorce is final. Child custody, support issues, and even relocation can fall under a post-divorce modification.
If you find the original terms of your decree are not working, you need to know the changes you intend to call for and why they need to be enacted. Without this basic understanding, it will be difficult for an attorney to determine if you meet the burden of proof necessary to complete a modification. To help you understand this process, this overview will explain post-divorce modifications and how courts grant their justification.
Generating Post-Divorce Modifications
Causes that lead to a modification are often as diverse as the families involved in the court system. Examples of events that require a post-divorce modification can include:
A job or other life change that requires adjustments in custody or parenting plan
An increase or decrease in income, affecting spousal or child support
Moving to a new location;
Marriage of either party;
Children getting older and requiring different parenting plan schedules
Increased medical or childcare expenses
There is always anticipation of future change. If children are ages six and eight at the time of the divorce, it is expected that when they become 13 and 15, they will be more interested in spending time with friends instead of being tied to a visitation schedule. However, the extent of that change is not always known at the time. It is then expected that when the children do become teenagers, further discussion and modification are inevitable once circumstances are better known.
Also, medical expenses like braces are often anticipated with these expenses accounted for in the original support order. But it is not uncommon for these to be adjusted if insurance situations change or a child faces unexpected uncovered medical expenses.
While change is often predicted, if not expected, it does not mean that all motions requesting a modification will be granted. The party filing that request must still meet a burden of proof.
Burden of Proof
It is impossible to modify a divorce decree just because you changed your mind. A judge will only grant a modification if you can show a substantial change in circumstances since the time the original decree was entered. Unless you have this component, it is unlikely that your request for a modification will be granted.
A substantial change of circumstances means that something arises that was not present at the time of the original decree. As an extreme example, if both parties were sober at the time of their divorce, a substantial change of circumstances can be argued if one party develops an addiction.
Most modification matters area not dramatic. In fact, many of these motions arise from job changes. A parent may experience a change of income that affects child support or secure a job that offers better health insurance. Modifying orders to reassign responsibility for health insurance or adjust support payments is very common. If a parent needs to move due to a promotion or new opportunity, that modification action is called a petition for relocation. Before granting that motion, judges will consider the current environment and how it serves the best interest of the child. Staying in the same school system with the same friends, for example, might be considered more beneficial than moving with the current primary parent.
Showing a substantial change of circumstances will likely be impossible if an area was simply neglected by the original order. The best course of action in that scenario is to hope both parties agree to a modification to make things easier.
Process for Modification
To modify a divorce decree, most states require a motion with affidavits explaining the substantial change in circumstance and the benefits of changing the original order. How this is presented will depend on the relief sought. For larger child support payments, the motion would include each party's income information. If there is a move or a parenting schedule change, the proposed order will present a proposed parenting plan that is considered more appropriate.
Modifications occur fairly frequently, as families rarely remain static. First ensure that your original order is adequate so that you do not find yourself needing a change without the grounds to request it. If you accomplish that successfully, your modification requests are more likely to be granted, as they reflect natural changes in your family's lives.