After a divorce, there are certain orders or rulings in place affecting issues of child custody, child support, visitation, and alimony. However, your life and that of your ex-spouse go through changes that can materially affect these rulings and make it difficult to adhere to them. When such circumstances arise, you or your ex may want to seek modifications. If so, consult Heather M. Ward, an experienced divorce modifications lawyer at (617) 903-8955.
Types of Divorce Modifications
There are 3 main areas where divorce modifications are requested:
- Increase or decrease in child support or its termination
- Increase or decrease in spousal maintenance (alimony) or termination
- Changes in custody or parenting plan
The process in seeking a modification is by filing a Complaint for Modification that asks the court to increase or decrease support payments or for a change in custody or visitation. The standard for such changes is generally a showing of a change in circumstances since the order or decree was issued. The time for filing a Complaint for Modification is generally after some time has passed, typically a year or more, since a court may be skeptical of your intentions and that you have not made a good faith attempt to adhere to the order before requesting the modification unless it is an emergency.
Basis For and Evidence for Modifications
Modification of Alimony
A court will award alimony based on the duration of the marriage, the needs of the recipient spouse, and the ability of the payor spouse to pay alimony. There must be a significant change in circumstances to justify the modification, such as remarriage of the recipient party or a material change in the payor’s or payee’s income or needs.
Modification of Child Support
You should seek modification of child support as soon as there has been a substantial change in circumstances affecting payments or your receipt of them. Loss of a job, an increase in the child’s needs (medical, education, activities, childcare), a change in parenting visits, or the child’s emancipation are factors a court will consider. Be sure to keep receipts or record of payments that are over and above what you expected to pay or that are now increased because of the change in the child’s needs.
In some cases, you may find that your ex is increasingly unavailable for the child or that you are spending much more time than the parenting plan or schedule has ordered. This can mean increased expenses for food, childcare, or activities. If this is the case, begin a log and calendar of the times the child is with you and a detailed list of your expenses with receipts or other evidence of payment.
You are not permitted to purposefully change jobs that results in a decreased income or quit employment unless you can demonstrate a compelling reason. Your capacity to earn a certain income is based on your experience and education and is considered heavily by the court.
Modification of Custody or Visitation
Seeking a change in legal custody can be difficult, especially if former spouse does not agree to it. You must demonstrate a significant or substantial change in circumstances since the underlying custody order was made, which would warrant a change in the legal custody arrangement. This might include that one parent has been convicted of a crime and incarcerated or having a record of adverse encounters with police due to allegations of drug or alcohol abuse, domestic violence or physical abuse. You will need police reports and likely credible testimony from lay witnesses and experts as to the conduct of the custodial parent that is threatening the welfare of the child.
These must have been circumstances that did not exist at the time the custody order was issued. The change in circumstances must also affect the welfare and/or safety of the child and that modification is in the child’s best interests.
If you are seeking a modification in parenting time or visitation, then the changes may not be so dramatic since the other parent will still retain custody and visitation rights. A modification might be a change in the times spent with you, such as summers, more weekends, or certain holidays. It could also mean more hours per week with you.
An alternative to litigation is to communicate with your ex and to work out an agreement pertaining to changes in support, custody or visitation. Mediation is another avenue to pursue. If you can reach agreement, have your divorce modification lawyer draft the changes for filing in court so that it will be enforceable.
Motions to Reconsider or Set Aside a Judgment
You can also file a Motion for Reconsideration. This alleges that the basis on which the original order was issued was a mistake of law or fraud, or that newly discovered evidence has surfaced that if known at that time would have resulted in a different outcome. You must show that such evidence could not have found or uncovered despite your good faith efforts and diligence. In such a case, the court may schedule a hearing to consider the new evidence or re-examine the appropriate or applicable law and issue new findings of fact and conclusions of law and direct the entry of a new judgment or order.
You could also file a Motion to Set Aside an existing order, presumably because it was based on fraudulent evidence or mistake of law. If granted, the existing order is set aside as if it never existed and the parties are back to square one.
There can be very short time periods for filing such motions. Your divorce modification lawyer will advise you. A motion to alter or amend a judgment after trial must be filed within 10-days of entry of the judgment. If based on fraud or newly discovered evidence, it generally must be made no more than one year from the time the order or judgment was entered.
Complaints for Contempt
If a party is not adhering to the divorce decree, then you or your ex may file complaint for contempt. This can include:
- Failure to pay alimony according to the terms of the order
- Failure to pay child support according to the terms of the order
- Not adhering to the parenting plan
- Not allowing visitation
- Failure to adhere to the property distribution order
A party’s failure to pay child support could result in that party suffering a suspension of his or her’s driver’s license, a lien placed on assets or even incarceration You can also ask the court for the other party to pay your attorney’s fees for bringing the complaint for contempt. Similarly, you can ask for attorney’s fees if the court agrees that a complaint for modification was frivolous or done solely to harass you.
Consult The Law Office of Heather M. Ward
Heather M. Ward is a Boston family law attorney who represents the interests of petitioners and defendants in family law matters. As a divorce modification lawyer, she has considerable experience in seeking divorce modifications of court orders during divorce proceedings and after judgment has been entered.
Contact her office at (617) 903-8955 to schedule a consultation.