The process by which a final divorce decree is modified is often referred to as ‘modification of divorce decree’ or decree modification. Though some aspects of the divorce decree cannot be easily modified such as those pertaining to the division of assets and properties, the law allows child custody and alimony specifications on a divorce decree to be modified after a divorce has been finalized. The process for modifying a divorce decree is different for everyone and will require the attention of a mediator such as an accountant and/or attorney.
In most cases, the court and most law firms will recommend that you address any modification attempts with your partner prior to engaging in the divorce modification process. If you and your ex-spouse can come to an agreement through informal venues, it will save you a lot of money and time as you would avoid a court trial. However, there are times when either spouse is unwilling to cooperate in which case you will need to file a ‘motion to modify’ the final divorce decree. Doing so will require the attention of an attorney that can assist you with the modification process and represent your case in a court of law.
In other instances, individuals prefer to work with a mediator that can assist both parties to come to an agreement. The mediator will carefully evaluate the situation and provide guidance to what can and cannot be remodified, eventually helping both members reach an agreement that works. If you wish to modify your final decree, the most cost-effective and time-efficient method is to work with a mediator who can help you solve your problems outside of a courtroom. Spending money and time in a courtroom will increase the costs of your modifications and it can cause other problems that arise when issues are brought to a family court.
The San Diego Divorce Attorney can assist you with the modification process from the filing process and if required, represent your case in a court of law. To speak with a law expert please contact the San Diego Divorce Attorney at 858-529-5150
Why modify your divorce agreement?
There are divorce cases that do not end even after the judge has established a final divorce decree. Due to the changes in circumstances after a final divorce decree has been delivered, individuals can modify the claims in the divorce decree by filing a petition to modify the agreement. The petitioner ( the individual seeking the modifications) will need to file a petition in the court where the divorce was processed. The petition must contain information that includes why the individual would want to revisit the divorce agreement. The petition is then served to the respondent (the ex-spouse) who is capable of favorably or unfavorably responding to the modification petition.
If both parties agree to the modifications, the modification procedure will be significantly more time efficient and cost-effective. In the event that both parties agree to the modifications, the couple will be capable of signing a ‘stipulation agreement’ where they can state the modifications to the divorce decree. After the agreement has been signed and delivered to the court, the court will be capable of incorporating the new terms and conditions of the divorce decree.
If either party is concerned about the conditions of the divorce agreement, they are capable of having their case handled in a court of law if informal meetings or mediation fails. Individuals who wish to change the details in their divorce decree will be required to submit a petition and may be required to represent their case in a court of law. Individuals wishing to bring their case to a courtroom are encouraged to speak with a qualified family law attorney to discuss the details about their situation and how the law comes into effect.
What can be modified?
As mentioned earlier, individuals who seek to modify their divorce decree may be unable to modify the provisions of the property, asset, and debt allocation. Unless you are able to prove that your spouse lied during the property and asset allocation procedure or unless your divorce decree specifically states that such modifications should be honored, you will not be able to modify the property and asset portion of a final divorce decree. More commonly, the court allows individuals to modify the provisions under spousal support, child support, and child visitation. However, if you have waived your spousal support, it may be more complicated to file for spousal support moving forward.
There are many conditions that can be modified in a divorce decree. To understand your state law and how your situation can be modified, you may want to speak with a local state family law expert. Ex-spouses are allowed to modify the following court orders:
- Child Custody and Visitation: the court will take into account the best interests of the child when deciding the provisions of child custody and/or visitation. Individuals may seek to modify joint custody orders, sole custody orders, and other provisions that may be included in the divorce decree. Sometimes individuals are in financial or other situations that prevent them from being seen as a reliable parent in the eyes of the law. If the requesting parents are able to prove that there has been a change in circumstances, he or she will be capable of fighting for child custody and visitation rights. Individuals may present that the living situation is no longer in the best interests of the child. If a child is being abused at home, the requesting party can include that it is in the best interests of the child to live with the other parent.
- Child Support: when deciding upon a child support order, the court will take into account who spends the most time with the child, the cost of the child's health insurance, the income of the providing party, the costs of nanny services (if applicable), the age of the child, and the overall needs of the child. When a party requests a modification for child support, the original factors that contributed to the child support order, will be re-evaluated and reconsidered.
- As with alimony support, the providing party can submit a modification request to have their obligations lowered if the child is reaching a certain age. In addition, the providing party may no longer be capable of keeping up with the child support payments and may want to change the amount that they are legally required to pay each month. However, individuals who quit their job and obtain a job that pays much less for the purpose of having their child support obligations lowered may still be required to pay the child support obligations of their final divorce decree.
- Alimony: spousal support is usually modified after the providing and receiving party come to an agreement to end or lower the financial obligations of the alimony. However, individuals may also be capable of changing the conditions of the alimony order if there is a change in assets or capital of the providing party.
- For example, if the providing individual is no longer making the same amount of money or if their financial obligations have increased, the court can establish an alimony award based on the recent financial information.
- In another instance, courts sometimes order a temporary alimony to help cover the costs of living for a spouse with medical conditions. If the temporary alimony order is soon to expire, the receiving party can provide that their medical conditions have not improved and therefore require the financial support. The court can order to extend the spousal support for a longer period of time.
Modifying the terms and conditions of alimony, child support, and child custody can easily be achieved through informal measures. Informally meeting and discussing the situation with your ex-spouse will allow the court to modify the provisions without the need to hold a trial. If however, there is a disagreement between both parties, you will need to present your case in a court of law. There are moments when a spouse may not have been honest during the divorce proceedings which may entitle the receiving party to other compensations. You can have your divorce decree modified in a courtroom if you are able to prove that your spouse has lied during the divorce proceedings or if you are able to provide that your circumstances have changed over time. If you are unable to fix the situation outside of a courtroom, you are encouraged to seek mediation or a family law attorney.
How to file a motion to amend a divorce order?
In many cases, you will be capable of modifying your divorce decree only a certain amount of time after a final divorce decree has been ordered. In addition, the petitioner will need to prove that the court came to a wrong conclusion or that the circumstances have significantly changed. Whatever the case may be, the petitioner will need to file a petition to the court where the final divorce decree was established. If you are looking to file a divorce modification, you will want to follow the next steps.
- Fill out the modification form(s): it is imperative that you check your state law or visit the court where the divorce was finalized in order to fill out the right type of document. Individuals can find different forms to address alimony, child support, and child custody. You will want to speak with an attorney or other law professionals about the right type of form for the case.
- Draft your claim: in your draft, you will want to include why you believe a modification is justifiable. For instance, if your ex-spouse is earning more money as a result of a raise or job change, the receiving party can request a change in child support. In this case, the court took into account the financial conditions of the providing party, a motion to have those conditions re-evaluated are justifiable. If the providing party is earning more money than when the divorce decree was finalized, they may be required to pay more out of pocket for child support or alimony.
- Notarize your draft: when providing factual statements, you will want to sign your document in front of a notary. The notary will verify the identity of the individual signing the document and the legitimacy of the document.
- Upon having your documents notarized, you are advised to make extra copies before ‘serving’ the petition to your spouse.
- Gather your documents and submit to the court: Make sure to have a copy of the original divorce orders and any other document such as the notarized documents mentioned above. Once you have your documents signed and notarized, you are capable of submitting your records to the court where the divorce decree was finalized.
- Serve your spouse: make sure that your spouse knows that you are submitting a modification request. You may ‘serve’ the modification request either by having an attorney or law enforcement officer deliver the documents. You may also send the documents by mail
- Attend mediation and/or trial: if both parties are unable to come to an agreement, a judge will hear your case and determine if a modification is justifiable. During the trial, you will require the attention of an attorney who can represent your case and facts.
In order to set forth a fair alimony and child support order, the court will take into account the financial status of the providing party. The court will also take into account the financial situation and earning potentials of the receiving party. The court will attempt to provide an order that is fair for both parties.
As circumstances change different individuals will want to modify the context in their alimony or child support order. If for instance, the providing party is no longer able to provide support, he or she can file a modification to have their financial situation re-evaluated. The court can reduce the amount of alimony and child support financial obligations if the providing party is able to prove that it is causing a great financial stress. In addition, individuals may choose to modify a divorce decree to keep up with the financial costs of raising a developing child. As children become older the costs of raising them significantly increases. The court can review the situation and increase the amount of child support obligations for the providing party.
If you are entering a courtroom or you wish to settle divorce decree through mediation, you may contact the San Diego Divorce Attorney at 858-529-5150. We are capable of helping you mediate your divorce modification and are ready to represent your case in of court of law.
