As time goes on after you're divorced, you may decide that the terms of your divorce no longer work for you given changes in your life or in your children's lives. For example, your employer is in financial trouble and has asked everyone to take a reduction in salary or your children have gotten older and require more expenses. Or maybe you've never been happy with the terms of your divorce and, although you've done your best to live with them, you've decided now is the time to try to get them changed.
If you and your former spouse see eye to eye on the changes, modifying your agreement or the judge's court order should be relatively hassle-free, assuming that the court shares your perspectives. Just as you did when you got your divorce, you must draw up a revised agreement with the help of your attorneys to be certain that you do not create any problems for yourselves. Then the attorney of whoever wanted to change the agreement files the agreement with the court so that the new agreement can be court ordered. However, if you want things changed and your spouse doesn't, or vice versa (which is more likely), you may be in for a replay of your divorce battles.
If you and your spouse don't see eye to eye about the changes one of you wants to make to the terms of your divorce and you don't want to minimize your legal expenses, try mediation. Mediation is a good way to avoid the expense and emotional upset of hiring attorneys and possibly having to go to court again.
Courts are more open to changing the terms of custody, child-support, or spousal support agreements than they are to changing the terms of a property settlement agreement. In fact, many states prohibit such a change. States that do allow modifications of property settlement agreements usually provide only a very short window of opportunity — typically 30 days after your divorce — for requesting the change.
Demonstrating a change in your circumstances
If you want a change in your divorce agreement and you and your ex don't agree on the change and you can't resolve your differences outside of court, it's time to hire a divorce attorney (if you haven't already done so). Your attorney, working with the attorney representing your ex, may be able to resolve your differences but, if not, he or she will file a motion with the court, and a hearing will be held. At the hearing, your attorney will present evidence to the court justifying the need for the change you are seeking, and your ex's attorney will argue against the change. The judge isn't going to okay a change just because you don't like the terms of your divorce.
Changing how you and your former spouse manage custody and visitation
If you want to modify the terms of your custody and visitation agreement, you must demonstrate a legitimate need for the change due to significant changes in your life, in your former spouse's life, or in the lives of your children. Those changes might include the following:
- You're moving a long distance from your former spouse or your ex is the one who's moving far away.
- The income of the spouse who's paying child support has increased or decreased.
- Your children aren't being properly supervised when they're with their other parent. Perhaps your former spouse has a substance abuse problem; your spouse is having to spend longer hours at work and, as a result, your children are being left alone for long stretches of time; your spouse has turned into a party animal and isn't spending enough time with your kids or isn't providing them with enough supervision; and so on.
- One of your children has become seriously ill and you need more financial assistance to help pay for the child's care and treatment.
- Your ex has developed a serious physical or mental illness, has developed a serious addiction to drugs or alcohol, has been arrested for a violent crime, or has been accused of child molestation or child abuse and, therefore, you want to change your current custody and visitation arrangement.
- You and your teenage son or daughter are in constant conflict and you're having problems controlling him or her. You feel that having your child live with his or her other parent would be in his or her best interest.
- You believe that your ex's new spouse is trying to usurp your position as parent to your children, is giving your children advice that contradicts the values you're trying to instill in them, or is allowing them to do things that you would never permit. As a result, you feel that your children are being harmed and are not being raised in a positive way.
- You believe that your former spouse is physically abusing or sexually molesting your children.
- The arrangements in your divorce agreement or judgment are simply not working out.
Regardless of what reason(s) you give to the court to justify your request for a modification, the judge bases his or her decision on what is in your children's best interests.
Changing how you and your ex handle child support
You or your former spouse may also want to make changes in your child-support court order. If you receive child support, you probably want more money and, if you pay child support, you probably want to reduce how much money you must pay. What a surprise!
If you request a modification in your child-support court order, you must provide the court with proof that changes in your life and/or in your ex's life or changes in the lives of one or more of your children merit the modification. Depending on exactly why you're asking for the change, this proof may include check stubs showing that you're no longer making as much money as you once made or medical records indicating that you have a serious health problem that limits your ability to earn money. If the court denies your request, your state's law probably limits your ability to file a new child-support modification request.
Securing a court order if you change your divorce agreement yourselves
If you and your ex-spouse decide to change your child-custody and visitation agreement, be sure to put the terms of your new agreement in writing and to get a new court order that reflects all the changes. Otherwise, despite what you and your spouse agree to, the new provisions of your agreement aren't legally enforceable because, from the court's perspective, your original court-ordered agreement is still in force. Also, get an attorney's help to make certain that the new agreement is enforceable and worded accurately. Finally, make sure that you and your ex each get a copy.
A judge may not consider the child-support-related changes you and your ex agree to as being in the best interest of your children. If that's the case and the changes involve reducing, suspending, or completely ending your child-support payments, the court can find the spouse who's legally obligated to make the payments in contempt of court. As a result, that parent can end up in legal hot water. To be legally safe, enter a new court order when you want to modify the terms of your child-support court order.
