Modifying the Divorce Decree
Key Points
  • Child support, custody arrangements, and spousal support (alimony) can typically be modified post-divorce. The court will examine any change in circumstances once petitioned for the change.
  • The changed circumstances is exactly what the court will base the decision upon regarding child support and custody, while keeping the best interests of the children at the fore front of any decisions making.

After a divorce, courts frequently entertain motions to modify the divorce decree. Modification leaves the general purpose of court order intact but amends the details. One cannot move to eliminate child support, but a custodial parent can appeal to change the amount due to a change in circumstances. The phrase change in circumstances controls the logic of such modifications.

Courts entertain motions to modify spousal support and child custody and support because of changes in the circumstances of either the payor or the payee, in the cases of alimony, or in the lives of the custodial or noncustodial parent, in the case of custody. Usually, at issue is the amount of support, and these motions often happen because increases or decreases in the income of one of parties.

Very often the custodial parent asks the court to increase child support payments because of increases in the cost of living. Because of this, some separation agreements provide automatic escalator clauses that eliminate the need for court-ordered, post divorce modification.

In considering modification of child support or custody orders (and this includes the terms and conditions of visitation), judges are guided by the best interest of the child. For example, if two former spouses cannot make their custody and visitation routine work, courts will order a change based on the idea that a continuing relationship with both parents is in the best interest of the child. Courts entertain motions to modify when the custodial parent interferes with rights of the noncustodial parent. Courts sometimes modify custody and visitation orders when one spouse wants to relocate beyond an easy commute (generally 150 miles).

In the modification of alimony, state statutes mandate many factors that courts must consider. However, in general, courts consider modification of alimony based on the overall situation of the payor, and the overall situation of the payee. Of the four categories of alimony -- limited duration or term, rehabilitative, reimbursement and permanent alimony -- courts most frequently hear motions to modify permanent alimony.

Generally, courts consider reductions in alimony as a result of:
  1. long term (more than six months) unemployment
  2. disability causing an inability to work
  3. "[e]xternal market factors that have affected by the payor’s inability to earn an income
  4. [g]ood faith retirement in old (or older) age."

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