After a divorce or paternity matter ends, one or both parties may want to modify the judgment somehow. In a general sense, modifications can occur as to child custody, child support and spousal support, which is still referred to as alimony in some states.
However, modifications as the property division in a divorce are generally not allowed. Once marital property and debt are divided in a divorce, that portion of a judgment is final. For this reason, property division must be thoroughly addressed in a divorce.
Do parties have to agree to a modification for it to take place as to custody, child support or spousal support? Or can a judge order a modification even if one party does not want it? This is a common question that some parties have.
The Standard to Prevail on a Modification
The reality is a judge can enter a modification even if both parties do not agree to it. To prevail on a modification, one party first has to file a motion to modify. In some states, they might call a petition to modify or for a modification.
The motion or petition is then served on the other party. The responding party can contest the modification. If that takes place, contested litigation then takes place. In some ways, this can feel for parties like re-living the original divorce or paternity case.
The legal requirements can vary by state. But in a general sense, a party has to show a change of circumstance of a substantial and continuing basis to justify the modification. In some jurisdictions, a certain amount of time from the judgment might need to elapse. In other jurisdictions, there is no such requirement if there is a substantial and continuing change.
As to child support and spousal support, the change of circumstance might involve an increase or decrease in one or both parties’ income. it might involve a change in the expenses of one or both of the parties. In terms of spousal support, the party receiving spousal support may have gotten remarried. Perhaps there is not a remarriage, but maybe the party receiving child support is cohabiting with another individual in a romantic sense.
In terms of child custody, the possibilities are endless. A party might end up relocating far away. It could involve the wishes of a child. It might entail the educational needs of the children, the fitness of the parents or a litany of other reasons. Contested custody modifications can often be some of the more acrimonious cases in family law.
How Do Judges Decide?
Many also wonder how do judges decide whether to modify a judgment if both parties do not agree. Ultimately, a trial or evidentiary hearing will need to take place where witnesses testify and evidence is submitted. A trial or evidentiary hearing could take a few hours, even an entire day and sometimes it can go on for days.
After the trial or evidentiary hearing, the judge then has to decide whether there is a sufficient basis to modify the judgment. In some cases, the judge may decide to modify the judgment. But in other cases, they may not. Either way, most judges issue a written judgment explaining whether there was a modification and their findings of fact and conclusions of law.