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Modifications in Family Law


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11/2/2013
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Modifications in Family Law

Q: What is a motion to modify?
A: A request made to the court to change an existing court order because of a change in circumstances.

Q: What types of orders can be modified?
A: Divisions of property and debt from divorce usually cannot be modified. Spousal support also known as alimony or sometimes can sometimes be modified depending in the original order. Child support and child custody can be modified if there is a change in circumstances.

Q: What is a “change in circumstances” for the purpose of a modification of child support?
A: In order to request a modification for child support there must be a change in circumstances that is substantial and continuous. For example, if the paying party loses their job which they were working fulltime and immediately requests a modification the court will look at whether the change is substantial. Yes, going from fulltime employment to no employment is substantial. However, is it continuous? Will the paying party be able to quickly find work? Will they be making the same amount of money? Your attorney may advise the paying party to wait on filing a motion to modify until either they have found new employment at a lower pay rate or until a long enough period of time has passed that the court will be satisfied that the change is continuous.

Q: What is a change for the purposes of a modification of child custody?
A: Child custody can and should be modified whenever there is a change such that the current court order is no longer what is in the best interests of the children. An extreme example would be that Parent A is awarded primary physical custody where Parent A has the children Monday through Friday and every other weekend. Parent B has the children every other weekend. However, Parent A is suddenly incarcerated and therefore unable to care for the children. Instead of Parent A’s friends/family taking care of the children during Parent A’s time with the children, it may be in the children’s best interest to spend more time with Parent B. In this circumstance, the best interests of the children have changed therefore justifying a modification by the court.

Q: Are there any risks in modifying a court order?
A: Yes. If you want to modify support only, that opens the door for other modifications. You may only want to modify the child support amount however the other parent may also bring up custody and modify the parenting plan as part of the modification.



Category: Family Law


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