After a divorce is finalized or custody order entered, life does not always stop. Circumstances change and emergencies happen. Many times, the order that the parties agreed on is no longer what works for one or more of the individuals involved.
While the order may say “final” on it, this title does not mean that it cannot ever be changed or modified, but certain factors must occur for that modification to occur.
Why Change an Order?
Many different reasons can exist as to why someone would want to change the prior court order, including the following:
- The parties have come to an agreement outside of court that differs from the court order;
- A significant change of circumstances has occurred in one or both parties’ situations since the last court order was entered; or
- The court or the other party made some type of procedural error that the moving party believes resulted in an unfair or unjust ruling.
If any of those circumstances apply to the case at hand, it is important that the party who is interested in modifying the order first seek the advice of a family law attorney before making any changes.
Modifying an order when the other party objects can be complicated and almost always requires the assistance of outside counsel.
Modification Based on Agreement
The ideal situation would be for the parties to come to some type of an agreement regarding modification of the order
Courts almost always encourage parties to work outside court to come to an agreement in lieu of litigation, if it is at all possible. The parties can work together or with the assistance of counsel or a neutral mediator to prepare an agreement modifying the previous order.
Once the agreement is signed, it must be submitted the court where the prior order was entered. The judge will review and will sign the agreement if everything is done appropriately and legally. Once the agreement is signed, it then becomes a binding and enforceable court order.
An attorney may still be needed for this step in the process as the order will need to meet legal requirements when it is submitted. The judge is not allowed to enter an order that would not otherwise be lawful and cannot give the parties legal advice if the order is not correct.
Significant Change in Circumstances
Many times, the parties may not agree on how the order should be changed. If an agreement cannot be reached, the court will need to hold a hearing after a petition to modify the prior order is filed.
Evidence will need to be submitted to show that a significant change in circumstances has occurred that requires the order on child custody, child support, spousal support or visitation to be modified. This legal standard can be hard to meet, so an attorney is almost always needed to prove the case.
When it comes to child custody and visitation, however, a few additional requirements must be shown to prove to the court that the modification is needed. Not only must there be a significant change in circumstances, this modification of the order must be shown to be in the best interests of the child. Alternatively, the moving party must show that the prior order is no longer in the child’s best interests.
A court will not modify custody or visitation orders easily. The stability of the child is paramount to the court. If the judge believes that the change would be detrimental to the child’s well-being, he or she will likely not modify the order.
When it comes to child support or spousal support orders, the change in circumstances does not need to be as significant and substantial as with child custody and visitation. Many times, it only involves a change in the income of either party that makes the difference in orders enough to justify a modification.
If one of the parties disagrees with a final order, certain post-judgment motions can be sought to modify the order.
These motions are a little more complicated. They include a motion for a new trial or motion for reconsideration if it is believed that a legal or procedural error was made. They also include a motion to set aside the court’s judgment if it is believed the judgment was issued under duress, by mistake or through fraudulent activity. And they also include a motion to vacate if the party believes a conflict exists between the ruling and the reasoning behind the ruling.
If a party believes one or more of these circumstances applies to his or her case, an attorney is recommended to review the matter and give advice on the best course of action.
Contact Voss Law Today!
If you have a final divorce judgment or custody order and have questions regarding modification of that order, contact us today to discuss the best options for your case. Consultations are always free. Call us today at 323-333-4481.