Can I change the terms of my divorce?

Q:

Can I change the terms of my divorce?

A:

The divorce process can often be emotional, contentious and confusing. Unfortunately, during this difficult time, couples are required to make decisions about child support, spousal support, debt repayment and asset allocation, which can affect their lives in many ways for years to come.

Some of these decisions can be modified. Other decisions are generally permanent or can only be modified in certain states, within a specified number of days and for very specific reasons. Let’s take a look at the most commons divorce issues and review the ones that can be easily modified:

1. Spousal Support

Spousal support is money provided to one spouse following a divorce. Spousal support is not guaranteed, but in many cases, it will be awarded for a specified time to allow the non-wage-earning spouse to maintain their standard of living.

Prior to awarding spousal support, the courts will evaluate a variety of factors including how much each spouse earns each month; monthly expenses; the age, physical condition, emotional state and financial status of each spouse, etc.

Spousal support payment amounts, as well as the length of time for which payments are offered, can be modified if the requesting spouse can prove a considerable change in circumstances. For example, a spousal support modification petition might be filed if the paying spouse was seriously injured and lost the ability to work and generate sufficient income to make their required spousal support payments.

2. Child Support

Child support payments are one of the most important terms of the divorce. Not only does the state have a vested interest in ensuring that children are property cared for by their parents, the custodial parent also needs funds to guarantee that their child or children are able to maintain the standard of living that they had prior to the divorce.

With this goal in mind, states have outlined general guidelines to determine how child support is calculated. For example, the State of Texas considers the non-supporting parent’s net income and requires a percentage of that income to be paid to the custodial parent. The percentage increases with each child. Additional support may be required for medical expenses, educational requirements or health insurance premiums.

Child support terms can be modified by either parent by requesting a modification of the child support order. However, evidence that justifies the modification must be provided to the court. Common reasons that a child support order may be modified include the following:

  • A substantial increase or decrease in a parent’s financial ability to pay child support.
  • An increase or decrease in the child’s medical expenses.
  • An increase or decrease in the child’s educational expenses.
  • A change in the health of the paying parent (i.e., the parent becomes severely disabled and unable to work).
  • A change in the child’s residence. For example, the child moves from the home of the custodial parent into the home of the non-custodial parent.

3. Child Custody

Child custody arrangements determine who will have sole legal and physical custody of a child, or whether both parents will share custody.

Child custody agreements can be modified if one parent can prove a legitimate need for the change. For example, changes that may necessitate a request for modification can include one parent’s need to move for employment, the custodial parent developing a substance abuse issue, the custodial parent failing to provide appropriate supervision for the child, or the relationship with the custodial parent deteriorates and the court determines that it’s in the best interests of the child for them to live with the other parent.

Property and Debt Division

Property division and debt division after divorce are more difficult to modify or sometimes cannot be modified at all. These two terms are determined by state law. For example, there are 11 states that currently use the legal notion of community property (i.e., an absolute 50/50 division of all property acquired during marriage) to allocate property following divorce. The remaining 39 states use equitable distribution (i.e., property is divided fairly but not necessarily 50/50).

However, property and debt division, according to legal sources, are generally not modified after the divorce. In fact, there is a general rule against modification of property and debt that is “strong and broadly applied by courts.” This is especially true if the divorce decree has become final, a period of time that varies by state. (Note, however, that during what is termed the “reconsideration period” prior to the finalizing of the divorce decree, the court has the right to reconsider the judgment.)

With that said, however, there are times when a final judgment for property and debt division can be reopened. For example, judgments can be reopened if they were the product of duress (time limits apply); there was a clerical mistake; a mistake of fact was made by one of both parties (i.e., one of the spouses failed to mention an asset to the court); fraud (a deliberate and intentional attempt to abuse the property division process by misrepresenting a material fact); and in some states, although not all, a judgment may be reopened if an asset was omitted from the division.

Several states also allow for the reopening of a judgment for newly discovered evidence, bankruptcy, consent by both parties, a lack of legal counsel by the injured party, if the division of the property was not thoroughly thought out, or tax consequences need to be reconsidered.

Bottom line: While divorce terms such as child support payments, child custody arrangements and spousal support may be modified, property division and debt division are much more difficult to change if the divorce decree has been finalized.

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