When the divorce process is completed, a final divorce decree will be issued. Typically, the final divorce decree will outline the rights and obligations of each person in regards to the division of marital property. Additionally, the final divorce decree may also include a child support order, custody order, child visitation schedule, or spousal support order.
Although the final divorce decree has final in the name, it is possible to modify a divorce decree, 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.
Every state has its own sets of laws and procedures for modifying divorce decrees, as well as what parts of the decree are allowed to be modified. Generally, child support orders, visitation schedules, child custody orders, and spousal maintenance payments may all be modified after a divorce decree has been issued.
However, a court cannot typically modify the division of marital property in a final divorce decree, unless modification of property division is allowed in the 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. Additionally, if both parties mutually agree to modify the marital property division order contained within the final divorce decree, the court may allow it.
As mentioned above, most courts require that the person seeking modification of a divorce decree to demonstrate that there has been a material or significant change in circumstances since the final divorce decree was issued. Importantly, the decision of whether or not to grant a modification of a final divorce decree will ultimately rest 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:
- Changes in the financial situation of either party, such as the noncustodial parent being unable to make timely child support payments, or the primary custodial parent being unable to fully support the child;
- A change in circumstances that would significantly change or disrupt the life of a child. For example, if one parent loses their job or is diagnosed with a chronic illness, a modification of a child custody or child support order contained within the divorce decree may be necessary to properly care for the child;
- Relocation of either parent, which renders the current child custody arrangements or visitation schedule unfeasible; or
- Changes in state laws, guidelines, or requirements as they pertain to the orders within the final divorce decree.
It is important to remember that violating an order contained within the final divorce decree is a serious matter. If either party subject to the decree does not follow the terms outlined in the decree, they risk facing 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 you are unable to follow any of the orders issued in the final divorce decree, it is important that you request a modification, instead of not meeting your obligations. As noted above, modifications of the final divorce decree, other than the part dealing with property division, are permitted so long as the request for modification is made either in the best interests of the child or due to a material change. Further, if both parties are in agreement as to the modification of the final divorce decree, a court will likely grant the modification without issue.
As mentioned above, the most common reason for modifying a divorce decree is because of a material change in the circumstances of the party that is seeking the modification. Therefore, it is best to wait some time before requesting a modification of the divorce decree, in order to be able to demonstrate that a significant change has occurred. If there has been a significant change since the final divorce decree was issued, then you may proceed with requesting a modification.
In order to modify a divorce decree, the party seeking modification (the “petitioner”) must first file a petition to modify the original divorce decree. The petitioner must then serve the petition for modification onto their ex-spouse, known as the “respondent.” In addition to filing a modification petition, the party seeking modification may also be required to file evidence supporting that there has been 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, if the respondent contests the modification, or the court contests that there has been a significant change warranting the modification, a hearing may be necessary.
As can be seen, there are numerous reasons in which modification of a final divorce decree may be necessary. Therefore, if you believe that a modification of your divorce decree is necessary, it is in your best interests to consult with a knowledgeable and well qualified family law attorney in your area.
An experienced family law attorney will be able to advise you on your best legal course of action, as well as file a petition for modification on your behalf. Additionally, they will be able to represent your interests in any necessary court hearings.