& Courtroom Experience
Modification: Divorce (Property); Suit Affecting Parent-Child Relationship
After a divorce is granted, can the property division be later modified?
Generally, no. The Court has no power to change the property division in the divorce once it becomes final. Technically, a divorce becomes final 30 days after the Final Decree of Divorce is signed.
After a divorce is granted, can the child-related orders be later modified?
Generally, yes. The Court will continue to have the authority (jurisdiction) to modify the orders regarding child support, conservatorship, possession and access and other child-related provisions until the child becomes an adult or the orders terminate.
If the other parent and I agree to change some of the child-related terms of our order, can we do it without going to court?
If the two parents agree to change the possession and access schedule on their own, they are not required to go to court since their order most likely has language that covers that situation. However, agreed changes that are contrary to the terms of the court order cannot be enforced by contempt if one parent decides that he/she no longer wishes to follow the agreement. If the change is a long-term change, a modified order is recommended to protect everyone involved.
Parents can agree to change child support and medical support outside the court, but such agreement should still be made into a court order. Agreements for support changes that are outside the court’s order are not enforceable without a court order reflecting the change. It is not recommended to change the support orders without a court order because if a person does not comply with the court order, contempt and jail are real possibilities. Also, the child support reporting agency’s (usually the Office of the Attorney General) records will not be accurate or able to be corrected without a court order.
How soon after an order is signed by the Court can I ask to modify or change the child–related terms of the order?
There are different time limits depending on the situation. Regardless of the time limit, there must be a material and substantial change in circumstances of one or both of the parents or the child to support a request to modify the child-related terms of the order.
What if my ex files a motion to modify that is just an attempt to harass me or make me incur attorney’s fees?
A party who files a frivolous modification lawsuit may be required to pay the other party’s attorney’s fees and costs.
When can I ask for a child support increase?
Generally, every three years, the paying party is entitled to a child support review. This is based on the presumption (which can be challenged by the paying party) that the paying party’s income will increase over time.
If there is a material and substantial change in circumstances of the parents or the child, either party can file a motion to modify at any time under those circumstances. Some examples are: the paying party’s income has increased significantly or the child has developed medical or educational needs beyond the normal expenses.
When can I ask for a child support decrease?
If there is a material and substantial change in circumstances of the parents or the child, either party can request a child support decrease (usually the paying party). Reasons to ask for a child support decrease include, the paying party’s income dropping a significant amount, the paying party having another child to support, or the receiving party giving possession of the child to the paying party.
If my employment has changed and I need a child support decrease, how far backward can the court change my child support?
The court cannot modify/change your child support backward (retroactively) any earlier than the date the receiving party is served with the motion to modify or the receiving party files a written answer to the motion to modify with the court. Therefore, the paying party should not delay if a modification is needed because the child support will continue to add up at the original court-ordered amount. However, if the parties are in agreement, the modification date can be whatever date the parties determine and include in the modification order.
If my ex’s employment has changed and that person should be paying more child support, how far backward can the court change the child support?
Whether you are the party filing a modification to increase or decrease child support, the court cannot modify (increase or decrease) the child support any earlier than the date the person not seeking to modify the child support is served with a copy of the motion to modify or files a written answer to the motion to modify. However, as stated above, if the parties are in agreement, the modification date can be whatever date the parties determine and include in the modification order.
If my child’s needs have changed, can I ask for more child support?
Depending upon what needs have changed, a child support increase may be appropriate. The court has broad discretion when it comes to a child support increase and will determine a child support modification based upon the facts and circumstances of the particular case.
Is the “best interest of the child” considered in a child support modification?
Yes. The best interest of the child is the primary focus of the court.
Possession and Access/General Terms and Conditions
If my court orders are no longer appropriate for my/the child’s situation, can they be changed?
Yes. They can be changed by agreement of the parties at nearly any time. A court can change the orders on a case by case basis. Consult an attorney because what a parent believes is not appropriate may not rise to the level that a court would consider a basis to change the orders.
If my child is frequently late to school, misses school, or does not get his/her homework done on the nights that the child spends the night at the other parent’s house, can anything be done?
Possibly. Depending on the extent of the school-related issues, a court may modify overnight possession, add some conditions to overnight possession that are based on the child being on–time to school and/or getting his homework completed, or any other possible solution that is in the best interest of the child.
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