Divorce Decree Modification
UPDATED: August 22, 2012
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Modification of a divorce decree may be possible if circumstances change after the final divorce decree has been issued. Modification is generally sought by petitioning the court where the divorce proceedings were held. The party seeking the modification is called the petitioner. The petition must be served on the petitioner’s ex-spouse, who is called the respondent. The respondent is entitled to contest the modification. The petitioner must prove that the requested modification is necessary.
In the alternative, if the parties are in agreement as to the modification, they may be permitted to sign a stipulation setting forth the terms of the modification and have the court incorporate the terms of the stipulation into a new court order.
What Can Be Modified In a Divorce Decree?
In general, property division and debt allocation cannot be changed unless the decree allows for such changes. Most courts are reluctant to revisit those issues. More commonly, decree modifications are requested regarding spousal maintenance or issues related to the children of the marriage, such as custody, visitation and support. However, if spousal maintenance is waived in the divorce decree, it may be difficult to obtain support at a later date, even if circumstances change.
The amount of spousal maintenance and child support awarded by the court depends on the financial situation of the spouse who is required to pay support. To calculate the award, the court will start with the gross income of the paying spouse, allow for any deductions provided for under the law, and consider any other factors related to the basic needs of the spouse and children. The court will also take into account any other children that the paying spouse is liable to support.
Generally, it is the child support award that most often requires modification as the basic needs of a child often increase dramatically as the child grows older. Also, if the financial situation of the paying spouse declines, and the parent is no longer able to make the payments provided for in the decree, the paying spouse may need to request modification of the spousal maintenance and child support awards. There are also many reasons modification of the custody and visitation terms may be requested. For example, if the custodial parent neglects the child or violates the visitation schedule, the non-custodial parent may seek a change in custody.
Informal Agreements and Divorce Decree Modification
It is important to be aware that an informal agreement between spouses to increase or reduce support payments, or change the terms of child custody or visitation, will not change the terms of the divorce decree. For example, even if the parties informally agree to a reduction in child support payments, the award set forth in the divorce decree will prevail. If the spouse who receives support decides to enforce the terms of the decree in the future, despite the informal agreement, the paying spouse may be forced to pay all of the arrears. It is always advisable to have the decree modified and obtain a new court order.