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The Divorce Encyclopedia
Modification


Term Definition Modification - an order changing the terms of another court order.
Application in Divorce Modification leaves intact the general purpose of the order but amends its details. For example, one cannot appeal to eliminate child support; however, one can appeal for a change in the amount due to changed circumstances.

After a divorce, courts entertain motions to modify spousal and child custody and support because of a change in circumstance in the lives of the either the custodial or the noncustodial parent, in the case of custody, or in the lives of the payor or the payee, in the case of alimony. Changed circumstances very often involve the reduced or increased income of one of the parties.

Very often the custodial parent (usually the mother) will seek to modify the child support she receives on ground of a change in economic circumstances occasioned by increases in the cost of living. Some separation agreements provide for automatic escalator clauses that eliminate the need for court-ordered modification.

In the modification of custody and child support orders, the best interest of the child is controlling. In such modification, courts work under the assumption that it is generally in the best interest of the child to have a continuing relationship with both the custodial and the noncustodial parent, and behavior that erodes that is sometimes grounds for modification.

Court will entertain motions for modification when the custodial parent interferes with the rights of the noncustodial parent. In one Missouri case, the court said that the facts of a case showed "an attempt by one parent to alienate a child from the other parent is a changed condition and can form the basis for modification." Interference need not be an active campaign to alienate a child from the noncustodial parent; interference with "reasonable" visitation can be grounds for modification.

One variation on interference with the reasonable visitation by the noncustodial parent sometimes happens when the custodial parent removes a child from the jurisdiction where the family resided before the divorce.

In the modification of alimony, state statutes provide many factors a court must consider; but in general, courts consider modification of alimony based on the overall situation of payor (usually the man) and the overall situation of the payee (usually the woman).

Actions to modify alimony are no different than other civil actions in the domestic relations area. A court can modify alimony with a properly requested pleading and discovery. If there are no factual disputes, a modification can be decided by a judge without a trial.

Generally motions for modifications of child support and alimony from the same party are considered separately.

The distribution of property, however, is not only rarely subject to modification. In general, a final judgment dividing marital property is permanent, and in the absence of fraud, duress or mistake may not be modified.

Changed circumstances, which give parties latitude to appeal for modification of child support, usually to not persuade a court to modify property division.

For example, courts are unmoved by claims by one party that assets, valued at the time of the divorce, has since changed, even when evidence strongly suggests that the property was undervalued or overvalued in equitable distribution. To do say, said one court "would open a Pandora’s box, permitting the parties to a divorce to seek subsequent modification of property settlements every time the property they received in the decree changed in value."

Even the failure of a business for which a husband was required to pay his wife for her share over a 20-year period did not warrant modification of the parties’ divorce decree, a New Jersey court ruled. Business failure, the court said, "was a contingency which he could have provided for in the parties’ agreement had he chosen to do so." In this reasoning, changed circumstance -- business failure -- is not exceptional, which would have permitted modification under New Jersey law.

However, plunging real estate prices, ruled a New Jersey court, may create circumstances "so unjust or inequitable as to justify relief from the judgment."

Adverse but unforeseen tax consequences as a resuolt of property settlement are not usually grounds for remedy through modification.

See Alimony.

See also Relocation (Removal) of a Minor Child.

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