Modifying a Divorce Decree 21

When a divorce is finally over, both parties generally breathe a sigh of relief – whether the divorce was quick and easy or long and complex. This relief is tied to the resolution and closure afforded by a divorce decree. But wait! Divorce decrees can be modified, even after they are considered “final”.  So, is it ever really over? The answer, like in many areas of the law, is “yes and no.”

Because the parties to a divorce have the opportunity to address all relevant matters during the divorce case itself, the court prefers that its order be considered final and non-modifiable (with a few notable exceptions). Generally, court orders regarding property division and debt division are not subject to future modification. Judgments regarding spousal support are modifiable in only certain circumstances.

Child Custody and Child Support

Courts always retain jurisdiction over the issues of child custody and child support. Support orders and custody orders can be modified at the request of either party or by agreement between the parties. Generally, the requesting party must prove that there has been a substantial and continuing change in circumstances which makes the original order impossible, unreasonable or otherwise not in the best interests of the child or children.

Dividing Property and Debt

Provisions in the judgment dealing with distribution of property and debt division are typically not modifiable. Real property, savings accounts, IRA’s, 401(k), other assets and debts are not easily altered after they are initially divided. If you discover at a later date that your spouse has defrauded you in some manner regarding the identity or value of marital assets or debts, you may petition the court to set aside the original judgment due to fraud and ask that the property distribution be reconsidered in light of the new evidence.

In some cases, one spouse may file for bankruptcy after the divorce is final. In bankruptcy, certain marital debts assigned to the debtor spouse are discharged as to that spouse but not as to the other spouse who is not party to the bankruptcy. The creditor may seek repayment from the non-bankrupt spouse if the original debt was a joint debt. If this is the case, the non-bankrupt spouse may ask the court to modify the judgment to award spousal support to cover the unforeseen debt service payments caused by the other spouse’s bankruptcy.

Spousal Support

Although some parties agree to make spousal support awards non-modifiable, spousal support is usually subject to modification if certain conditions are met. The specific requirements  for retention of jurisdiction over spousal support vary from state to state. Be sure to consult with a family law attorney in your state to determine if and how your spousal support award is modifiable.

If the court in your case continues to have jurisdiction over your spousal support award, modification will generally only be granted if the requesting party shows a substantial and material change of circumstances since the most recent order. If the party receiving support is seeking increased payments, he or she must also show that the paying party has the ability to pay the increased amount.

There are several circumstances in which a spousal support obligation will automatically terminate. Some of these circumstances are contained in the state’s spousal support statute; others may be written into a settlement agreement. Spousal support may terminate at the expiration of a certain term of years or months. Spousal support may be increased by previously determined cost of living adjustment. Spousal support will terminate upon the remarriage of the spouse receiving payment. In some states (and in many settlement agreements), spousal support will also terminate if the receiving party cohabitates with another adult in a domestic relationship without the benefit of marriage. This keeps exes from skirting the remarriage termination by merely living with their significant other until the spousal support term is complete.

Modification by Agreement without Court Order

Sometimes, parties will make agreements to modify a term of the divorce decree – often related to their children but, on occasion, related to other issues. You must not forget that such an agreement is not enforceable unless and until a court approves it and issues a modified order. Not only is the modification not enforceable until the court has signed off, the original order is still legally in effect. A modification agreement without court approval will not officially change the duties and rights of either party.

For example, divorced parents may agree to a lower monthly child support payment because the paying parent is not making as much money as he was at the time of the divorce. If the court does not issue a modified court order at the request of the parties, the court (and the state child support enforcement agency) still considers the original child support amount as the amount due. Failure to pay the full amount could trigger enforcement action.

Clerical Errors – Nunc Pro Tunc Orders

A court can modify any portion of a divorce decree if it is discovered that a clerical error was made in the order itself. This clerical correction is often referred to by the Latin phrase, “nunc pro tunc”. A correction made nunc pro tunc is made retroactive to the original date of the decree. An example of a common nunc pro tunc judgment is when the court must correct a legal description or account number in the judgment in order to effectuate the property division.

As with any aspect of a divorce, it is always best to consult with an experienced family law attorney to help you determine what and how the laws apply to your particular circumstances.

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Discussion

  • Kathy Pye

    If a Judge dropped my ex-husbands child support back pay from $30,000 to $8000 but did not check to see if Welfare was owed can I get it changed so he has to pay me? The Judge that made the change later was brought up on charges for molesting his step daughter. He was not fair.

  • Richard Montez

    My ex-wife receives 1/2 of my PERS Disability Retirement under Community Property Division, of a court order.She only has a six year vested interest ( year of disability-year of divorce). I have been remarried for 21 years and the court-order has been in effect since Nov. 1997. She is also remarried. Can I petition the courts for a Modification based on an extreme hardship? My health is very poor and the costs of more medications and mobility equipment is overwhelming. Thank you, Rich from Calif.

  • Rachel

    My ex husband was granted a car (I am primary and he is secondary on the loan), in the 2010 divorce decree.
    His payment history has been untimley with 25 late charge, 10 NSF checks, 5 deferred payments in three years of the loan.
    The loan is currently 1.5 months behind. He is unemployed and I do not see that this payment history will improve.
    He admits he cannot get loan current, but also states he does not want to give up car.
    I am willing to assume the loan , but only if I have posession of the car.
    Do you think the court will honor a motion to reconsider and award me the car (with all the payment history)?

  • Ray

    Does the court maintain jurisdiction in the case of an Alabama post divorce modification for alimony over both parties if one of the parties has moved out of state ?

  • toni

    i’ve been divorced for 6 years in pennslvania. my income has changed (lost job) drastically since the procedure. any way to modify the decree to include some sort of support payments..i also have 2 life threatening conditions that were diagnosed about 2 years ago.

  • Karin

    FLORIDA Final Judgment Dissolution of Marriage NUNC PRO TUNC Order?

    1. Final Judgment financials stated that wife was imputed 100k income. Order issued March 2009. (Trial held Dec. 2008).

    2. In November 2010, COURT ORDER FROM FLORIDA JUDGE (ALJ) with full disability determination with onset date AS OF OCT 1. 2008.

  • Lee

    After a modification is initiated by one party, the other party can deny or accept the provisions. What happens if one party is trying to drag on the process so she can try to claim both kids over tax season since the modification process ended up going from June until January the following year…can she do this? Or does an injunction stop her from filing her taxes (state of NE) until the modification is signed?

    Also, if the state (NE) Law for visitation is stated a certain way and the party that initiated the modification wants state law for visitation while the other party is stil trying to make a deal about the visitation, will the party wanting the state law for visitation immediately end up getting that visitation due to it being state law? Will a judge make the person constantly fighting against the visitation due to her being condescending and thinking her opinion is above the law, sign the modification so this process can be over with and life can go on? Please help!

  • Katie H

    In February 2011, my ex-huband & I went (both pro-se) before the Judge in Canyon County, Idao in which we put “put on the record” our agreement to modify child support. The Judge did the calculation at a rate of $383 per month and ordered my ex to prepare the Order. Upon receipt of the file-stamped Order, I noticed that the amount in Order stated child support to be $248. (Which ironically, this was the amount that my ex had offered to pay if we settled out of court, but I said that I would only agree to the guideline amount.) Being that our youngest child would be turning 18 in April 2012, I just let it go, as I live in Texas and was tired of the whole “let’s go back to court and fight some more”, as this was his 5th request for reduction in support. However, when we filed our 2011 income tax return, it was returned, stating that someone else had claimed them. Per the court documents, I am entitled to claim them. Additionally, he hasn’t seen nor contacted our children since July 2009. So, this has created yet another issue. How can I get the Order corrected to reflect the amount the Judge calculated? There was a court reporter present, and the transcription reflects $383? Also, the Order was submitted without my review or signature, if that makes a difference. As for the IRS matter, do I need to file contempt action? Hire a tax attorney? Or let the IRS sort it out? Time is of the essence, as my son graduates June 8, 2012, at which time support will cease.

  • felicia

    My ex just informed me I will be receiving papers signed by a judge that will remove the “no over night visitors of the opposite sex” clause in our divorce decree. He is moving in with girlfriend We have 50/50 custody. Can our divorcee decree be modified without my consent? If so, can I have a restriction removed stating I have to live within 25 miles from him, without my ex knowing or agreeing?

  • Chris

    I live in va and have a final divorce decree sind Dec. Of 2010.The decree said i have supervised visitation at the mothers descretion. I have not seen him since. Can i go to the court and get it changed so we have joint custody and better visitation for myself? I am not abusive or anything.i simply did not show up for a court date when they did visitation and thats what we signed for in the divorce decree….can that be changed now that i have a job with hours mon thru fri and off the weekend so i can see him? Again i am in va.

  • Sam Fish

    I reside in minnesota and have been divorced for 29 years and now that we are both retired can I get the divorce decree modified
    He has another pension and wondering if I can also collect on that This pension was there when married for 22 years please advise Thank you

  • Mook

    My ex agreed to pay 140,000 in taxes owed by her business in exchange for ownership of our house. It was very clear in the divorce agreeement that she would assume these debts and I would be free from them, helping my credit. She has failed to pay these taxes and the IRS is coming after me. She still owns the house and makes more money than me. She is trying to bankrupt the taxes, which means I will have to as well and have a bankruptcy on my record. I have heard it’s not possible to bankrupt the taxes. Do I have decent grounds to sue or to ask the court to modify the divorce agreement?

  • Gracie

    I’ve been divorced since 1999 and when I pulled a copy of my divorce decree to get a marrage liscense, it said that no children were born out of our union. Well we do have one child. This is obvisously a typo. Am I legally divorced? What can I do to have this corrected?

  • Vicki

    We divorced in 2007 without any attorneys at his insistence. I had recently had neurosurgery which left me with a seizure disorder and a state of intermittent confusion. I have not been able to make very good decisions or choices because I am easily confused and naive. Since I had no legal advice, I am told I have been short-changed.
    We remain on fairly cordial terms.
    The divorce decree said that I was to move in order for him to complete repairs and sell the house within six months of the divorce. I had to move and he made me take all six of our dogs with me. I was unable to rent anywhere with six dogs, so bought a junky fixer-upper in TN. The amount I got in the divorce did not last long enough and my job situation deteriorated. I was foreclosed on in Dec. 2011. I was homeless… had nowhere to go, so I moved back to FL and I and my two remaining dogs are occupying a small spare room upstairs in the former marital home with ex and his current wife and cats. they both have very terrifying outbursts of temper and I am often frightened of one or both of them.
    I am of course, on the deed with him. Two mortgages total about 150k. Zillow, which does not know how many rooms or amenities are in this house has it valued at 433k laast time I looked. It was valued at about 775 or more in 2007. there is additional common debt on credit cards and also I am in default on five other credit cards. My income in 2011 was considerably less than six thousand dollars. I am on food stamps now for 3 months.
    A doctor has advised me to apply for disability based upon the epilepsy, constant pain upon standing and frequent falling. I am trying to do so though the paperwork is intimidating.
    Even though this house has a large two car garage (which has never had a car in it) he told me when I came back that I could store my stuff in the garage. that is impossible

  • JBH

    I reside in the state of Louisana. I have a divorce decree settlement that states it cannot be modified. I have been paying my former spouse a monthly settlement. I am now coming to the end of my responsibilty. I have been levied with large late fees and interest penalties per my divorce decree because of severe economic change in my income. I have two questions:
    1) I am wondering what is the best approach I can take to reduce/negotiate a reduction of these fees due to economic constraints?
    2) If I cannot pay these in an orderly fashion, can I be held in contempt of court?

  • Sarah

    i was married for 6 months to my first husband. i am currently going through another divorce with my second. my first divorce decree was signed and filed and then it was removed and signed by another judge and refiled at a later date.By the later date i was already remarried. Is my second marriage null and void?

  • LJDW

    My ex and I did a non contested divorce bcuz he refused to go thru the courts and promised me the moon if I kept it out of court. He has not done the things we verbally agreed on and in our divorce decree, we had 5 years to decide what to do with our house and each to pay half the morgage. I paI’d my half for two months to him when he told me he wasn’t putting my money toward the morgage and also not paying his. My name was not on the financing and he refused to give me the info in order for me to pay it directly, then informed me the house was in forclosure anyway…I had no idea we were even in default and in danger of loosing it!!! So I stopped paying him my part of mortgage and asked him over and over again for the mortgage info so I could save our home ( it had changed banks and he wouldn’t let me see or give me any of info). So I had to move out bcuz he said they would be taking the home. Come to find out a year later…he lied….the come wasnt forclosed on until a year later… .I have health issues and dealing with trying to recover from his extreme control and was afraid to do anything about it. Do I have a leg to stand on when it comes to taking him to court over the home or him lying to me about the things he verbally promised in order to keep it out of court….in california

  • usmc

    I have just completed a modification of child support. In the order there is a “Child Support Judgement” section. In that section it outlines my monthly payments to be $702.50 per month. Which seems to be a clerical error because it should be much more. With that said if you continue through the document you come to a section that is more of a definition section and the heading is “Current Child Support” in that section it states the total monthly amount and is correct as to what it should be. So, my question is what takes precedence the “Judgement” section that states my monthly payment and what I will pay each month, or the “Current Child Support” section. Given that all parties have agreed and signed the order are we bound to the “Judgement”?

  • bharris

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    In my divorce decree I have to pay child support, out of pocket medical and dental and all of three kids college. As I found out later my ex aunt worked for the judge. And her lawyer and the judge also shared and office which the Aunt worked in. My lawyer wrote up the divorce decree in which He never gave me time to read it. He said it all standard. My question can I have it modified or canine get it changed where its more even in the responsibility.

  • Lynn

    I reside in Texas and divorce was final Nov 2011. I didn’t have much money and the attorney I hired was one I could afford but didn’t explain things well like I could ask for 1/2 of my ex husbands retirement. I got the divorce and have been struggling ever since. I make significantly less money than my ex and I am curious if I can get a lawyer, go back to court and modify the original decree to ask for my 1/2. We were married for 10 years and I feel that the money we accrued was together as we both worked, so although I wish I did my research back then, I am hoping the legal system in TX will have some caveat. Any advice will be great appreciated.

  • lyfp

    I was divorced in 2001 with one child. We set child support which ended in 2010 when my son graduated from High School. During the last two years of support I was unemployed and have just found out that my ex husbands salary was MUCH more than he had proported during the majority of these past 12 years. Can I go back and get adjusted support based on what he should have been paying (I would ask that he pay it to our son’s college directly) I live in Florida. any advice?