When the divorce process is completed, a court issues a final decree of dissolution of a marriage. Typically, the final divorce decree outlines the rights and obligations of each former spouse regarding all of the matters at issue in the divorce. So, the identification of the spouses’ assets as separate or marital or community property and how it should be divided would be addressed. The final divorce decree may include a child support order, custody order, child visitation schedule, or spousal support order if the case involves any of these issues.
Although the final divorce decree is considered final, it is possible to modify it, even after the decree has been issued. Typically, the reason for modifying a divorce decree arises from a significant change in the circumstances of one of the parties subject to the decree.
What Parts of the Divorce Decree May be Modified?
Every state has its own set of laws and procedures for modifying divorce decrees. The law regarding which parts of the decree can be modified differs in different states. Generally, however, we can say that child support orders, visitation schedules, child custody orders, and spousal maintenance payments may all be modified after a divorce decree has been finalized.
However, a court typically cannot modify the division of marital property in a final divorce decree unless modification of property division is allowed in the final decree. For example, if the final divorce decree allows for the reopening of the marital property division for forgotten assets, then modification of the property division order would be permitted to accommodate forgotten assets.
Additionally, if both parties mutually agree to modify the marital property division order contained within the final divorce decree, the court may allow it.
What Qualifies as a Material or Significant Change in Circumstances?
As noted above, most courts require that the person seeking modification of a divorce decree demonstrate that there has been a material or significant change in circumstances since the final divorce decree was issued. Importantly, in the end, the decision of whether or not to grant a modification of a final divorce decree rests with the court that issued the decree.
What qualifies as a material or significant change in circumstances varies from state to state. Some of the common material or significant changes in which a modification may be justified include the following:
- Changes in the Financial Situation of Either Party: For example, the noncustodial parent who makes child support payments to the other may lose their job and become unable to make required child support payments. Or, the primary custodial parent may become unable to support the child fully;
- A Change in Circumstances That Especially Affects a Child: A change in circumstances that would especially change or disrupt the life of a child of the marriage might require modification of a final divorce decree. For example, one parent may lose their job or be diagnosed with a chronic illness. In that case, a modification of a child custody or child support order contained within the divorce decree may be necessary to ensure that the child is properly cared for;
- Relocation: If either parent relocates, this may require an adjustment of the existing child custody arrangements or the visitation schedule because the current arrangements may become impractical or even impossible to maintain;
- Changes in State Laws: A change in state law or the state’s guidelines or requirements as they pertain to the orders within the final divorce decree might necessitate a change in the decree.
It is important to remember that failing to comply with an order in a final divorce decree is a serious matter. If either party subject to the decree does not follow the terms of the decree, they risk serious legal consequences. For example, if a parent fails to make timely child support payments, they may be held in contempt of court for failing to follow the court’s order.
Therefore, if a person cannot follow any of the orders in a final divorce decree, they must request a modification. It is better to seek modification than to fail to meet one’s obligations as ordered in a divorce decree.
As noted above, modifications of the final divorce decree, other than the parts that deal with property division, are possible as long as the request for modification is made either in the best interests of the child or due to a material change in the circumstances of the parties, e.g., relocation of one spouse.
Further, it is advantageous if the parties agree to modify the final divorce decree. If the parties agree and the modification is reasonable, a court would probably grant the modification without issue.
What Steps Must I Take to Modify a Divorce Decree?
As noted above, the most common reason for modifying a divorce decree is because one of the parties has experienced a material change in their life circumstances. Therefore, it may be best to wait until sometime after the final decree is issued before requesting a modification of the divorce decree.
A person must be able to demonstrate that there has been a significant change in the circumstances of the parties. It is this significant change that has taken place in the time since the final decree was issued that is going to justify a modification.
To modify a divorce decree, the party who wants the modification must first file a petition to modify the original decree. In some states, filing the petition in the court that issued the final divorce decree may be necessary. The person then becomes the “petitioner” in legal terminology.
The petitioner must then serve the petition for modification on their ex-spouse, referred to as the “respondent.” In addition to filing a modification petition, the party seeking modification may also be required to file evidence showing a material or significant change in circumstances since the original order was issued.
If it is shown that there has been a significant change requiring modification of the original divorce decree, then the court may grant the modification. However, a hearing may be necessary if the respondent contests the modification. Or the court may not be satisfied that the evidence submitted is enough to show that there has been a significant change warranting the modification. In this case, again, a hearing may be necessary.
Both parties can present evidence and arguments supporting their position at any hearing.
Do I Need a Lawyer for Help with My Divorce Decree Modification?
As can be seen, there are many reasons for which modification of a final divorce decree may be necessary. Therefore, if you believe you need to modify your divorce decree, you want to consult a knowledgeable and well-qualified divorce lawyer in your area.
An experienced divorce lawyer will be able to advise you on your best legal course of action and file a petition for modification on your behalf. Additionally, they can represent your interests in any necessary court hearings.
If your ex-spouse seeks a modification and you do not agree that it is necessary, you may want to consult an experienced divorce lawyer to help oppose a petition for modification. Or, if your ex wants a modification and you need help possibly negotiating a modification that might be acceptable to both of you, again, a lawyer can help bring negotiations to a successful conclusion.
