If you and your ex were able to agree upon the terms of your Separation Agreement (or Divorce Agreement) without having to spend a great deal of time or effort fighting each other, that’s wonderful! If it took a bit of negotiation and give and take (sometimes feeling like you give more than you take in order to reach a settlement), that still means that, when push came to shove, you and your ex were able to work things out to avoid a trial, which is still usually good. Even the best laid plans and negotiated agreements will sometimes require modifications, however. This blog deals with what happens when the current order is no longer working and needs to be changed for one reason or another.
In What Situations Can You Modify Your Original Divorce Agreement?
The general burden that needs to be met in order to modify the terms of a prior judgment is that there needs to be, what’s referred to as, “a material and substantial change in circumstances.” In plain English, that means there has to have been something that has significantly changed at this point in your life from when you were previously in court. It’s not just that time has passed and now you’re not happy with how things are; it requires something that the Court considers an important enough change to be able to have your complaint for modification survive a motion to dismiss.
If you want to set yourself up well in your divorce agreement and you think you may want to modify your agreement in the future, reference something that could be a trigger for a change in circumstances, such as your children starting school or becoming old enough to handle a different parenting schedule. The best thing to do is talk to an attorney to determine whether there’s been what the court would consider enough of a change in circumstances to grant a modification or how to set yourself up in order to be able to get back into court.
The only issues you will be able to modify are those which were merged with the judgment of divorce as stated within your Separation Agreement. (This is why the Judge likely asked you at the trial on your divorce if you understood the difference between survival and merger!) You can pretty much ONLY modify issues that were merged with the divorce judgment. Anything related to your children will always be merged. Anything related to a property division will almost always survive a judgment of divorce, meaning you CANNOT modify them! The surviving/merger language is usually part of the legal mumbo jumbo within the first 5-10 pages of your separation agreement. Check with an attorney to make sure you can modify what you’re looking to modify pursuant to the terms of your divorce judgment.
How to Modify Your Agreement
When you need to change your divorce agreement, you can choose one of two possible avenues; you and your ex can fight about it or agree to it. If both of you are in agreement that things need to change and of what they need to change to, you can file a joint petition and sometimes not even have to go to court. Otherwise, you’ll need to file a complaint for modification and have your ex served. The process then goes through the court system until you either reach an agreement or have a trial.
Temporary Orders with a Modification
Generally, in order to modify a prior judgment within a temporary order (an order that enters during the pendency of the case until all the issues are resolved), what you’re seeking to change either needs to deal with child support or there needs to be an emergent situation that requires prompt attention. A modification isn’t like a divorce where you pretty much always will be able to go in on an initial temporary order.
When to Modify Your Agreement
The best times to modify your agreement is if you and your ex have been acting in a way that has changed the initial order and you need the order to reflect what you’ve been doing currently. Also, if there has been something that has happened that makes it so that you need a change in the order, you should file asap. Again, talk to an attorney to make sure your timing on filing is right before you take the jump to go for it. Just remember that a Judge cannot generally order anything for any amount of time BEFORE you filed and had the complaint for modification served, so if you need something changed, you need to take action.
If you find yourself in one of the following example scenarios, you may want to look into filing a complaint for modification sooner rather than later:
- Your employer is in financial trouble and you were fired, demoted, or took a reduction in your salary. As a result, you cannot make your usual child support or alimony payments. File asap. You will still be held liable for the prior ordered amount until the Judge orders a new amount.
- Your child has developed an ongoing illness or injury and you need additional child support to help pay for his or her care and/or medical expenses.
- You found a new job that puts you on a different schedule, so you need to change your parenting schedule and the other parent is not cooperating with you.
- Your ex-spouse has found a higher-paying job or is now living with a new significant other and you want to reduce or suspend your alimony payments.
- Your child, who was previously living with the other parent, lives with you now.
- You need to move because of your job which would make the current parenting schedule hard to follow.
As stated previously, when it comes to property division, you will generally have to live with the original order or agreement. If someone hasn’t done what they are supposed to related to the property division, you can usually bring a contempt. And sometimes, In rare situations, you may be able to get the court to make new orders about property division, but you generally cannot modify a final division of assets if the prior agreement survived the divorce judgment.
If you’re not sure whether your situation warrants a modification, you should call O’Connor Family Law today. The next time you have a legal concern, our diligent family attorneys will make it our mission to ensure you reach a fair resolution. We look forward to meeting you and making sure your court judgments align with what’s actually going on in your life.