Modifying a Divorce Decree 27

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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