Months or even years after a divorce, parties may seek to modify a portion of their final divorce order. Often, a court will modify the order if it finds that a significant change in circumstances warrants modification, but modification of an asset division order specifically is very rare. In many states, an asset division order will only be modified to address an inadvertent or clerical mistake. Some state laws may also provide for modification when the court finds evidence of fraud, misrepresentation, or other misconduct. However, modification of child or spousal support orders is much more common.
If your financial circumstances take a turn for the worse, it can be impossible to keep up with child support or spousal support payments ordered by a final judgment in a divorce proceeding. At the same time, rising costs of caring for children may be very challenging to meet if you are receiving an inadequate amount of child support. Ordinary increases in the cost of living may be handled by a cost of living adjustment (COLA) clause in a child support order, but not all of them contain this clause. Whether you are paying or receiving support, however, you may be able to modify a final judgment to adjust the amount of child or spousal support if a circumstance has changed in your financial situation.
Spouses who are paying support should be especially alert about modifying an amount that they cannot pay. Failure to keep up with child or spousal support results in debts, or “arrears,” that you cannot eliminate through bankruptcy or through a retroactive court order. This means that you must approach your former spouse or a court about a change as soon as you realize that you will not be able to keep up with payments.
Talk It Out
If you feel you need to modify your support obligations given a change in financial circumstances, try to talk to your former spouse first before going to court. The court is more likely to approve a new plan that both of you agree is fair.
It is much easier to change a final judgment if both former spouses agree that the change is fair and necessary. Before approaching the court, you should discuss the details of your situation with your ex-spouse, try to persuade him or her that a change is needed, and get his or her consent in writing to a change. If the two of you reach an agreement on a new plan, the court is likely to approve it as long as it seems fair to both spouses. However, a radical reduction in child support may require some explanation to a judge about how this amount will be enough to meet your child’s needs.
Seeking Temporary or Permanent Modifications in Court
A hearing will be necessary if two former spouses cannot agree on modifying a court order. The person who is seeking a change will need to show a significant change in circumstances that support either a temporary or a permanent modification. A judge may grant a temporary modification to someone paying support, for example, if he or she was unable to pay because of an illness or a medical emergency. Someone receiving support may be able to get a temporary modification if the child had a medical emergency or because of a temporary financial hardship. The changed amount will remain in effect only as long as the situation causing it lasts.
Sometimes, a divorce order or settlement agreement will indicate how a party may request a modification and under which circumstances.
Less often, a judge may permanently change the amount of support ordered by the final judgment in a divorce proceeding. This can happen when one former spouse or the other loses a job or is forced to take a job with a substantially lower salary. (However, an ex-spouse cannot deliberately take a lower-paying job to avoid paying child or spousal support.) A court also may order a permanent modification if one of the former spouses becomes disabled, if one of them marries a new spouse with a substantial income, or if the child’s needs change permanently. However, whether a changed situation affects your support obligations is very fact-specific, and you are encouraged to seek the advice of an attorney to determine your specific rights and obligations. A COLA clause is another example of a permanent modification. These types of changes will stay in effect until support ends or the court makes another change to the order.