When Things Change

Judge Toler Talks about common issues people face after divorce decrees are entered and how to handle unexpected changed. Advice is given on how to modify the decree in cases of change or any sort of instability.

By Judge Lynn C. Toler
Updated: July 29, 2014
Advice from Judges

So you are done. The divorce decree has been finalized, you and your former spouse have gone your separate ways and you won’t have to deal with them anymore… that is, of course, unless you have “long term business” with your ex. Long term business encompasses all of the things the final decree obligates you to do after it has been issued. Things like child visitation, support, custody as well as spousal maintenance.

The effects of the orders in the decree can go on for years, especially if you have children together. The problem is the court can only decide who should do what based upon the circumstances as they exist at the time the decree is issued. And while the court can anticipate some predictable changes such as a child turning 18, it cannot predict the future.

Here are some common issues people run into after a decree is entered:

  • The spouse who has custody of the children moves out of town
  • One spouse remarries or cohabitates
  • A spouse undergoes employment changes: the loss of a job, retirement or health care benefits
  • A supported spouse becomes self sufficient after the divorce.

So the question is: if something unexpected happens, are you wedded to the terms of your divorce decree? The answer is: your Final Divorce Decrees can be modified, however, it depends upon the terms of the decree itself, the nature of the change that you believe makes modification necessary and in the U.S., the law in your state.

Of course, it is easiest if you both agree on what needs to be changed. Let’s say the primary custodial parent’s work situation changes and they begin to travel a lot and will be unavailable to the children for extended periods of time. It would be ideal if both parents can agree to a change in custody or visitation to allow the children to spend more time with the spouse who is at home. However, your mutual agreement is not enough, you MUST go to court and file a joint or stipulated request for modification to formalize the change. .

If one spouse is seeking a change that their ex does not agree to, that party can still petition the court for modification. This is not unusual. In fact, there are lawyers who specialize in divorce decree modification.

In the U.S., each state’s divorce laws are different, and most states will only modify a decree if change in circumstances is considered "substantial" or "significant and material." Some states even demand the petitioner to prove "extreme hardship" before modification will be granted. Consequently, if your ex received a simple 5% raise or a one-time bonus, a court will be unlikely to change your spousal support order.

Under the right circumstances a support order can be increased, decreased, extended or terminated. Custody or visitation arrangements can be altered with the best interests of the child in mind.

Keep in mind that even if you do have a substantial change in circumstances the terms of the divorce decree itself can restrict your ability to modify it. This occurs more typically with spousal support. Unless jurisdiction to award support has been reserved, post judgment spousal support is often limited by the stated duration of the decree. Moreover, if the decree does not provide for any spousal support and does not specifically maintain or reserve jurisdiction over the issue, then that door may be closed forever.

As always, make sure you know the applicable law and the procedure where you live.

Judge Lynn Toler, a graduate of Harvard and The University of Pennsylvania Law School, served as a municipal court judge for eight years. She presides over the courtroom on the nationally syndicated television show Divorce Court. She is also the author of My Mother's Rules: A Practical Guide to Becoming an Emotional Genius, and co-author of Put it in Writing: Creating Agreements Between Family and Friends.

For more advice from Judge Lynn Toler, visit http://www.divorcemag.com/articles/judge_toler.

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July 28, 2010
Categories:  Legal Issues

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