Life does not stand still. Children grow up, job changes may necessitate relocation, changes in one’s health, and the vagaries of the economy may affect income positively or negatively. For these reasons and others, changes in life circumstances may require a post-divorce modification.
When you first got divorced, you and your spouse reached an agreement in which a number of issues were addressed. Commonly, these included agreements regarding:
- Child custody and visitation
- Child support
- Spousal support
- Division of property
When there is a significant change in the life of either ex-spouse, terms of the court order or divorce agreement may need to be modified to address those changes. In short, a post-divorce modification means that one or more parts of the original divorce decree are altered to reflect new needs or circumstances.
What is the legal procedure for post-divorce modifications?
As in your original divorce, you can choose when a post-divorce modification becomes necessary. While it may make you feel some of the same unpleasant emotions you experienced when you first divorced, the modification process does not have to be contentious. With skilled legal guidance, it can be conducted calmly to help you and your former spouse reach a new agreement acceptable to both of you. At that point, your attorney will prepare and submit the agreement to the courts.
When parties cannot reach a satisfactory resolution, either can file a motion (a written request) with the judge who signed off on the order.
In either case, modifications may be for one or several of the original divorce terms or temporary or permanent. Still, there does need to be proof of a significant change of circumstances as the reason for a modification.
Documents that are required as proof depend on the type of modification being requested but may include the need to show proof of:
- Loss of employment; a letter of termination
- Changes in medical needs (for you or a child); medical records or hospital/doctor bills
- Increase or decrease in income; a pay statement
- Relocating for a job; a letter from a current or new employer indicating a move
You must be able to “back up” why you seek a modification. In addition to being your advocate, your Monterey post-divorce modification lawyer ensures all filings and required documentation are complete, accurate, and timely. It is our job to make sure that you get fair treatment and the best possible outcome.
Child custody and visitation modifications
Simple changes to visitation are generally straightforward and can usually be worked out between you and your former spouse. Any time a parent seeks modification of child custody, the most important factor the court will take into consideration is what is in the best interest of the child. Because the courts want to help ensure that your child or children have a happy, stable, and loving environment without the turmoil of unnecessary disruption, the parent seeking the modification must prove that there is a significant enough change in circumstances—and that the change is consistent with your child’s best interest—to justify a modification. Reasons for modification may include:
- Job loss
- Debilitating physical or mental illness
- The need to relocate out-of-state or out of the US
- A change in the child’s medical or educational needs
Modification can also be sought when It is necessary to protect a child from physical or emotional abuse or neglect, from a parent who has an alcohol or drug addiction problem (relapsed into substance abuse), or for reasons of parental alienation or an inability to co-parent successfully.
Modifying child support
Just as a child needs stability in a custody situation, he or she also needs the security of having financial needs met to ensure that their housing, educational, medical, and other needs are adequately met. Child support modification may be necessary when a parent’s income decreases, appropriate when income increases, or when there is a substantial change in a parental timeshare.
A minor income increase or decrease may not warrant a support modification. The courts will require proof of a substantial change of economic circumstances to modify a child support request, starting with a complete and accurate Income and Expense Declaration or a simplified Financial Statement.
As with child custody modifications, the court will apply the best interest of the child standard when deciding.
Changes in spousal support
Spousal support modification is often necessary when income has declined, where there is financial hardship, or in the case of job loss. “Alimony” is based on a number of factors, but the primary among those is the payer’s ability to pay and the payee’s need for support.
Spousal support became “permanent” once the divorce was finalized, but that doesn’t mean it is unending. Permanent simply means the amount of spousal support agreed upon at the end of the divorce process.
It is increasingly common that spousal support was not intended to last indefinitely. For instance, in a marriage that lasted less than ten years, spousal support is usually paid for half the length of the marriage (from the date of marriage to the date of separation). Factors that may play into a decision regarding spousal modification or termination include the level of education, as well as each spouse’s age, health, and marketable job skills.
The judge may have issued a Gavron warning to the spouse receiving support. This is to inform them that they need to “make reasonable efforts to assist in providing for their support needs” as soon as reasonably practicable. Failure to show progress is grounds for terminating spousal support.
Revisiting property division
Because California is a community property state, you and your ex-spouse split assets (and debts) equally when you divorced, except those acquired before your marriage. There are exceptions, such as a gift or inheritance, or property owned before marriage. Of course, an absolute 50/50 division isn’t exact, and you and your spouse may have a prenup regarding who gets the artwork and the silver and who gets the boat and the furniture.
A spouse who feels the property division was improper can file a ”Motion to Set Aside the Judgment” in cases where:
- An agreement was made under duress
- One spouse lied about the full value of an asset
- One spouse failed to disclose as an asset
- One spouse did not comply with full financial disclosure requirements
- There is mental incapacity
Navigating the emotional and financial aspects of post-divorce modifications
If you have already been through a divorce, chances are you don’t relish the thought of revisiting the emotional roller coaster ride of ending your marriage. You are already dealing with a change in living or housing arrangements, building new social networks, the struggles of co-parenting, making financial adjustments, and rediscovering your identity. Reopening discussions with your ex about money and children can be painful. Keeping discussions with your former spouse and his or her attorney civil, respectful, and honest while keeping boundaries is key to “getting through” a post-divorce process.
Making new financial arrangements is often especially challenging, particularly regarding child and spousal support. Working out a modification may require the assistance of a financial planner who can help determine what is both fair and workable.
Finding the right Monterey post-divorce modification attorney and getting support from therapists and financial professionals can help ensure a smoother modification process.
Avoiding common pitfalls
The best way to keep from making a mistake that could put you at a disadvantage is to keep your emotions in check. Never act out of anger or revenge. In addition:
- Consider the impact any changes will have on your children and your financial future
- Be realistic about what to expect
- Don’t make verbal side agreements with your ex
- Do not use your children as pawns
- Never enter into a post-divorce agreement without skilled and knowledgeable legal representation
Contact the Guiliano Law Firm to learn more about how we can help guide you through post-divorce modifications
Our comprehensive approach to helping clients through the divorce and post-divorce process helps ensure a more positive experience and the best possible outcome. We believe in listening: we hear your story and consider all your needs and demands. At that point, we craft a strategy to help you reach your goals while ensuring your rights are fully protected. Moreover, our clients appreciate our calm and caring approach to their situation.To schedule a consultation to discuss your needs, please contact us at (831) 372-4003. We provide post-divorce modification representation to clients in Monterey, Hollister, and surrounding communities.
