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Modification of Support and Custody
In general, once a Judgment has been entered in a divorce or other family law matter, it is usually possible only to modify terms of custody and parenting time, child support, and spousal support.
In addition, in general, such matters can only be modified if there have been substantial, unanticipated, and material changes in circumstances. Child support can also be reviewed and modified if appropriate once every three years, even if a substantial and material change is not demonstrable prior to the review.
Changes in circumstances which can give rise to a change in terms of custody and parenting time, child support, and/or spousal support can include changes in income or needs of the parties or their children, changes in living circumstances or parenting arrangements, proposed moves of one party or the other which will affect parenting arrangements, and other matters.
With limited exceptions, the property division set forth in an original Judgment is not modifiable. Some of the exceptions include situations where property is located only after a Judgment has been entered (or where one party sought to hide property from the other party), and amendments to correct clerical errors.
Supplementary proceedings may also be initiated in some circumstances within two years after a divorce is entered, in order to split up property which was awarded to the parties jointly.
What some people call “non-judicial modifications,” i.e. modifications entered into by the parties, without a court order or supplemental judgment, may be non-enforceable. For example, an agreement of the parties to reduce child support will not generally terminate the judgment for child support. Unless a satisfaction of judgment is later entered, the support that was ordered by the court will remain an enforceable obligation which can be sued on later. A lien in the amount of any officially ordered but unpaid support may create difficulties for a person trying to obtain financing for a new home purchase or other credit. In general terms, the court only has authority to suspend, reduce, or terminate support from the date that a motion to modify support was filed, and a court cannot generally make changes retroactive to some earlier period.
It can be very important, therefore, to make a formal motion and obtain a formal order or Supplemental Judgment changing support, rather than simply agreeing with the other parent or with a former spouse that both will respect such a change.
Similarly, if there has been a change in the status quo, such that, for example, a child has been living with the non-custodial parent for an extended period, it can be important to have this memorialized with a Supplemental Judgment. Without such a change, the parent who officially has custody could at some point in the future seek to enforce his or her rights under the most recent court order, which can result in a long and bruising court battle, considerable harm to the child, and significant expense.
Child support may also need to be modified because a child reaches the age of 21, or reaches the age of 18 and no longer qualifies as a child attending school. Particularly when there are other children who also receive child support, it can be necessary to re-calculate support. Even when a child reaches age 18, but continues to attend school, if the child lives away from the parental home, there can be a need for a Supplemental Judgment instructing the parents to pay support directly to the child, instead of payments being continued to the former custodial parent. In such a circumstance, it will also be necessary to include in the Supplemental Judgment that both parents now need to pay support to this child, since the child no longer lives with either parent.
Modifications may also be needed if there is a significant change in parenting time, or if one parent is not regularly exercising scheduled parenting time. In such cases, it can be necessary to put the new situation into a concrete format, and to ensure that stability and predictability is provided for both the child and the parents.
Modifications may also be needed in situations where there was originally joint custody, but one parent now feels that this situation is not working. Some parents who request a modification from joint custody are surprised, however, as a court is required to take the best interests of the child into consideration, and it is possible that custody may be awarded to the other parent in some circumstances.
In cases where there are children of the parties who are between the ages of 18 and 21, the children must be made a party to any modification proceeding, even if the modification is needed to reflect the child’s change in status, or if the modification is caused by the fact that, although between the ages of 18 and 21, a child is not attending school.
When one party and/or a child has moved out of state, or even to a different county, there may be procedural issues relating to the court or even the state which has jurisdiction to make modification Judgments. These issues can be highly technical and somewhat contentious.
NOTE: There are many other factors which may be important in modifications. It is important to work with a skilled family law attorney in such matters, as some things which, on the surface, might seem to give grounds for a modification of support, custody, or parenting time may not, under the law, be adequate to allow a modification. Other things which may, on the surface, seem less important actually may form a legal basis for a modification. The above is a general discussion of some of the factors affecting modifications in family law proceedings. This discussion may or may not apply to particular cases, as each case is unique, and the legal factors, doctrines, statutes, case law, and administrative rules governing modifications are very complex. The above should not be considered legal advice, nor should it be taken as a statement of the only time that one might benefit from consulting a legal or other professional.
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