Modifications of Orders
Early on in a divorce, custody, or support case, it is not uncommon for temporary orders to be set in place whether by stipulation of the parties or order of the court. However, it is rarely the case that those initial court orders remain appropriate on a long-term basis, and as such a modification of those orders may be appropriate. The only way to modify an existing court order is to either get the other party to agree (and sign a stipulation and order to be filed with the court) or have the court order the modification over the other parties’ objection.
For parties who are unable to agree on the appropriate modification of an existing order, one party will need to file a request for order seeking the modification they desire. It is imperative to keep in mind, however, that in order to obtain a modification of an existing order, the party requesting the change must meet the threshold requirement of proving that there is a change of circumstance justifying the modification. A failure to demonstrate a change of circumstance will result in the court denying that party’s request.
The change of circumstance will depend entirely on what type of order a party is seeking to modify. For example, it is quite common for parents to have a custody and visitation order that they negotiated when their children were young. However, as time goes on and the children get older, it is not unusual for one or both of the parents to decide that the original schedule that they negotiated long ago is still appropriate and in the best interest of their children. In that sort of case, the change of circumstance is the growing up/aging of the children.
Similarly, child support orders are frequently modified based on a number of changes that can occur throughout a case. For example, if either party receives an increase or decrease in income, that is a change in circumstance justifying a modification of the support orders. If the parties change their visitation schedule, thereby altering the timeshare percentage, then that also qualifies as a change of circumstances. If a party becomes disabled or retires, again, that would amount to a change of circumstance sufficient to meet the threshold requirement of proving a change of circumstance exists so as to allow the Court to modify the existing support orders.
For many going through this process for the first time, understanding terms such as “change of circumstance” can be confusing. Here at Mello & Pickering, LLP, we can help you navigate the process, review the facts of your case and help you determine whether now is the right time to file a motion to modify. Our attorneys have litigated (and when appropriate, settled) countless cases involving modification of court orders.
If you have questions about modifying your existing orders, or any other family law topic, call our office for a free consultation or an in-person appointment at (408) 288-7800.
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