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.

Your Suggestion

1. Support Modificaton
   As circumstances change, it may become necessary to modify child or spousal support. Most states have some sort of calculation they use to determine support. Any paralegal can run the numbers for you so there is nothing to fight about. In your divorce agreement, add a clause that states that the two of you want to reduce legal fees by having informal modifications when there is a change in circumstances. That you agree to exchange year to date income information and to use a paralegal to determine support and draft a stipulation in order to avoid court. Also include an attorney fee provision that says if one party does not abide by this agreement and the non breaching party seeks relief from the court, they WILL be entitled to attorney fees. This way everyone has an incentive to follow the agreement.
   Contributed on 10/12/2007 by: Divorce In A Day Mediation Carlsbad, CA [Total Contributions: 14]

   Category: Child Support   (Applicable in All States)
2. Rhode Island child Support- motions to modify
   Child support in Rhode Island (RI) is not automatically modified when there is a change in circumstances. The parent must file a motion to modify child support. When a motion for modification of child support is filed a court date will be set by the clerk of the Rhode Island Family Court. In order to modify child support there must be a substantial change in circumstances. Under RI Law, a new child support amount does not run retroactive to when the circumstances actually changed! The new child support order should run retroactive to the date of the filing of the motion.
   Contributed on 10/29/2007 by: Slepkow Slepkow & Assoc. East providence, RI [Total Contributions: 5]

   Category: Child Support   (Applicable in Rhode Island)
3. Modify Child Support in Rhode Island
   What may constitute a substantial change in Circumstances pursuant to Rhode Island family / divorce / child support law in order to warrant a modification of child support? 1. unemployment 2. disability 3. new dependant child 4. decrease in income of either party 5. increase in income of either party 6. increase in cost of daycare 7. increase in cost of medical insurance 8. a change in the financial circumstances of the either parent such as inheritance, acquiring assets 9. either party obtaining social security benefits (SSI or SSDI) or afdc benefits 10. new RI Child Support Guidelines promulgated. 11. loss of overtime income 12 a substantial bonus of either party 13 any other change in circumstances that is recognized by the Court.
   Contributed on 10/29/2007 by: Slepkow Slepkow & Assoc. East providence, RI [Total Contributions: 5]

   Category: Child Support   (Applicable in Rhode Island)

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