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MODIFYING (CHANGING) THE TERMS OF A DIVORCE JUDGMENT |
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I don't like the terms of my divorce judgment. I made a bad deal. Can I get it changed? |
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Are there some parts of the divorce judgment that just cannot be changed? |
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What is the basis on which I would be allowed to have a divorce judgment modified by the judge? |
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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? |
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How can I find out whether the child support obligor is making substantially more money? |
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Can child support and maintenance payments be reduced? |
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Do the same rules (substantial increase or decrease in income) apply to maintenance (alimony)? |
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Can I have my support obligation reduced because I changed jobs and my new job pays me substantially less? |
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Can maintenance be increased merely on the basis that the payor is making more money now? |
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If I can prove that it would now be in the best interest of my children for the judge to transfer custody to me will the judge do so? |
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We have "joint custody," with the wife being the residential parent/primary custodian. Doesn't the joint custody give the husband a leg up in gaining residential custody? |
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I agreed my husband could have custody, but now my circumstances have greatly improved so that it would be in the best interest of my child to be in my custody. Will I win? |
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| Q: |
I don't like the terms of my divorce judgment. I made a bad deal. Can I get it changed? |
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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. |
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| Q: |
Are there some parts of the divorce judgment that just cannot be changed? |
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Yes. The divorce judgment can be divided in two parts: The property distribution part, which is not modifiable, and the rest of the judgment (child custody, child support, visitation and maintenance) which are modifiable. The property distribution, which is non-modifiable, would include disposition of the house, pension plans, cars etc. Maintenance is not modifiable if the divorce agreement says it cannot be changed. |
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| Q: |
What is the basis on which I would be allowed to have a divorce judgment modified by the judge? |
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A showing of a "substantial change of circumstances." The position of the law is that the divorce judgement, 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. |
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| Q: |
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? |
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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 Gitlin, Busche & Stetler is that the increase should be at least 20%. |
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| Q: |
How can I find out whether the child support obligor is making substantially more money? |
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There's the rub. 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 the first instance, however, the 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. |
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| Q: |
Can child support and maintenance payments be reduced? |
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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 bonafide and cannot be self imposed. |
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| Q: |
Do the same rules (substantial increase or decrease in income) apply to maintenance (alimony)? |
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Yes, but the law allows a marital settlement agreement to state that maintenance is non-modifiable. You should examine your marital settlement agreement to see if the maintenance payments are specifically stated to be non-modifiable. |
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| Q: |
Can I have my support obligation reduced because I changed jobs and my new job pays me substantially less? |
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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. |
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| Q: |
Can maintenance be increased merely on the basis that the payor is making more money now? |
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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 not enjoying a higher lifestyle. |
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| Q: |
If I can prove that it would now be in the best interest of my children for the judge to transfer custody to me will the judge do so? |
| A: |
No, not based on what is in the best interest of the child. The best interest of the child is the standard by which the court awards an original grant of custody. But for a modification ( transfer ) of custody, as in child support modification, you must first prove a change occurred in the circumstances of the child , or the custodian and that those changes have had an adverse effect on the child, plus thereafter proving that it would be in the best interest of the child to transfer custody. In addition, during the first two years after the divorce judgment is entered, you must establish that the "child's present environment may endanger seriously his physical, mental, emotional health." This is very difficult to establish. |
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| Q: |
We have "joint custody," with the wife being the residential parent/primary custodian. Doesn't the joint custody give the husband a leg up in gaining residential custody? |
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No. The joint custody does not give the husband any advantage. |
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| Q: |
I agreed my husband could have custody, but now my circumstances have greatly improved so that it would be in the best interest of my child to be in my custody. Will I win? |
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Gitlin, Busche & Stetler has been involved in many cases where a young parent gives up custody because she does not want the responsibility of raising the child. Some years later, she becomes more mature, and typically has made an economically fortunate marriage, and she is now ready for parenthood. The modification of child custody statute is, however, specific in stating that the required change of circumstances must be on the part of the child or the parent having custody, that is, a change of circumstance on the part of the non-custodial parent will not bring about a change of custody. |
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