The entry of the divorce judgment may not be the last time you or your spouse are in court for your divorce. Child support, child custody [called allocation of parental responsibilities], alimony, and other provisions are generally subject to modification or change if the situation changes after the divorce judgment is entered. Property division, however, cannot be changed unless the parties agree or give the court jurisdiction to modify the property division.
I don’t like the terms of my divorce judgment. I made a bad deal. Can I get it changed?
No, not because you don’t like it. Of course by agreement with your former spouse, virtually any change can be made, as long as the change does not adversely affect the children.
What is the basis on which I would be allowed to have a divorce judgment modified by the judge?
For the issues of support, maintenance, and allocation of parental responsibility (read custody), generally on a showing of a “substantial change of circumstances.” The position of the law is that the divorce judgment, whether it was entered by a settlement agreement, or as a result of a trial, is a final judicial act.
The law says that the judge made the determinations in the divorce judgment based on the facts in existence at the time the judgment was entered, so the party seeking to change the terms of the judgment must show that there has been a substantial change of circumstances since the entry of the judgment.
Can child support be increased if the child support obligor is making substantially more money now than he was at the time of the judgment?
Yes, as long as the needs of the children have also increased. The law does not state what a substantial increase in income is. The rule of safe harbor of The Gitlin Law Firm is that the increase should be at least 20%.
How can I find out whether the child support obligor is making substantially more money?
Unless there were automatic disclosure provisions in the underlying order or judgment (usually marital settlement agreement), first, you must file a petition in court alleging you are informed and believe that the child support obligor is making substantially more money now.
Once you are in court, you are entitled to discover through a demand for tax returns, pay check stubs, or subpoenaing the employer, how much he earns. In addition, there is generally required the submission of a financial affidavit form following the filing of petition for modification of support.
Often, however, there are clues are if the obligor’s lifestyle indicates an increased income. But keep in mind he may be driving a new, expensive car, or he may have a new home, but he may have put very little money down.
Can child support and maintenance payments be reduced?
Yes. On the same basis that child support and maintenance may be increased, that is, upon a showing of a substantial change of circumstances, but a reduction in income must be bona fide and cannot be self imposed.
Do the same rules (substantial increase or decrease in income) apply to maintenance (alimony)?
Yes, but the law allows a marital settlement agreement to state that maintenance is non-modifiable or only modifiable if certain conditions exist. You should examine your marital settlement agreement to see if the maintenance payments are specifically stated to be non-modifiable.
Can I have my support obligation reduced because I changed jobs and my new job pays me substantially less?
No. In theory the original maintenance award was made in order to allow the receiving spouse to enjoy the same economic lifestyle after the divorce as she had during the marriage. She is not entitled to a maintenance increase to live beyond that level merely because her former husband is now enjoying a higher lifestyle.
Can maintenance be increased merely on the basis that the payor is making more money now?
No. Again, in theory the original maintenance award was made in order to allow the receiving spouse to enjoy the same economic lifestyle after the divorce as she had during the marriage. She is not entitled to a maintenance increase to live beyond that level merely because her former husband is now enjoying a higher lifestyle.
Modification of Custody / Visitation now known as Allocation of Parental Responsibilities
In the original joint parenting agreement, I was awarded liberal parenting time but my former wife was awarded primary residential custody. If I can prove that it would now be in the best interest of my children for the judge to allocate parenting time primarily to me, will the judge do so?
No, not based on only a showing of what is in the best interest of the child. The best interest of the child is the standard by which the court awards awarded the original grant of custody — now known as the allocation of parental responsibility / parenting time.
But for a modification ( transfer ) of what you refer to as “custody,” as in child support modification, you must first prove a change occurred in the circumstances of the child or either parent and that a modification is necessary to serve the best interests of the child.
In addition, during the first two years after the joint parenting agreement was entered, you must establish based on affidavits that there is reason to believe that the “child’s present environment may endanger seriously his or her mental, moral, or physical health or significantly impair the child’s emotional development.” This is difficult to establish.
We have “joint custody,” with the mother being the residential parent/primary custodian. Doesn’t the joint custody give the husband a leg up in gaining residential custody?
No. The joint custody does not give the father a significant advantage. On the other hand, there would be a different answer if under that joint parenting agreement, there were an actual arrangement under which the child was receiving care, without parental objection for six months before the filing of the petition for modification.