Divorce is one of the most significant life changes most people ever experience, but of course, that doesn’t mean life stops changing once a divorce is final. When you make your divorce settlement agreement, or present your evidence at a divorce trial, you are trying to achieve an outcome that will work best for your family’s needs. But what if those needs change after divorce?
Changing needs and circumstances, often unforeseen, are the reason that New York allows divorce modification. Ex-spouses and their children need to live with the terms of a divorce for a long time; it makes sense that those terms should be able to be modified when necessary.
That said, it is also important to have certainty and stability, so divorce modification is not done casually or easily. There needs to be a good reason for the change, and not every provision in a divorce decree can be modified.
Certain aspects of a divorce can be modified if there is a substantial, unforeseen change of circumstances or other requirements are met. They include:
Child custody in New York is based on the best interest of the child. If there has been a substantial change in circumstances since the divorce decree was entered that affect those best interests, the court that entered the original order may modify custody provisions.
Examples include new and significant medical or educational needs of the child; a parent’s sudden illness or incapacity that makes them unable to care for the child; or unsafe or unstable conditions in a parent’s home. Another common reason for seeking a divorce modification regarding custody is if one parent wants to relocate with the child and doing so would affect the other parent’s visitation.
Child support in New York may be modified if either parent’s income has changed by more than 15%, if it has been more than three years since the original order, or if there has been some other substantial change in circumstances.
Unless the original divorce agreement provided that spousal support would be non-modifiable, either ex-spouse may seek a divorce modification regarding spousal support. Again, a substantial change of circumstances is required, such as a job loss or disability. New York courts may be especially likely to grant this type of modification if a party would otherwise need public assistance.
Terms of a divorce decree that are typically not subject to modification in New York include any terms that the parties specifically agreed to make non-modifiable. For example, many couples agree to make spousal support non-modifiable.
Distribution of marital property is also typically not subject to a divorce modification, unless there is proof of fraud by one party or other circumstances so extreme that the court agrees that not to modify would be unjust. However, this is very rare; if you agree to a property settlement, you should expect that it will be final.
If the parties to a divorce agree to change terms that can be modified, the agreed-upon revision should be put in writing. It’s best to have an experienced family law attorney prepare the revised agreement or, at a minimum, review it to ensure that it complies with legal requirements. Then it can be signed by the parties and submitted to the court for approval, after which it will replace the original. Until a court approves a divorce modification, the original divorce decree remains in effect.
Of course, it often happens that one party wants a divorce modification and the other does not. In that case, the party who is seeking the change needs to file a Petition for Modification with the appropriate court and serve the petition on the other party, who will have the opportunity to respond. The court will set a date for a hearing on the petition.
At the hearing, each side will have the opportunity to present their case to the judge, including documentary evidence in support of their position. If you are working with a family law attorney, he or she will have prepared you for the hearing, including how best to document a substantial change in circumstances. The burden of proof is on the person seeking the change, but the person opposing the modification should still be prepared to support their position with evidence.
Evidence that your attorney might present at the hearing includes pay stubs and tax returns if you are trying to show a change in income; medical or school records; police reports or court records; and witness testimony. The court will weigh all of the evidence and reach a decision as to whether a divorce modification is warranted.
Changing a divorce decree can be difficult, but sometimes it is necessary. It’s best to have a knowledgeable attorney by your side who can help you navigate the process. At Duke Law Firm, P.C., we provide our clients with reliable representation for a wide variety of divorce and family law matters and are committed to walking with them every step of the way.
Offering customized legal services and compassionate counsel, we welcome you to contact us online or call Duke Law Firm at 585-229-6875 (Lakeville) or 585-449-4987 (Rochester) today to schedule a consultation to learn how we can help.
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