- What post-judgment orders can be modified by the court?
- When will a court modify a post-judgment support agreement?
- How soon after a change occurs should I file for modification?
- The process of requesting a post-judgment spousal support modification
Our San Bernardino divorce lawyers are here to provide expert legal guidance and support as you navigate the complexities of divorce modification. Contact us today to discuss your specific situation and explore your options.
Which Post-Judgment Orders Can Be Modified By the Court?
When situations arise that impact a required party’s ability to comply with the court’s orders, the law allows for that party to petition the court for a modification to the terms of the divorce agreement.
In the state of California, a party may seek modification to the following orders after final judgment has been issued:
- Child Custody / Visitation Orders
- Child Support Orders
- Spousal / Partner Support Orders
- Family Support Orders
Child Custody or Visitation
Modification of child custody or visitation orders may occur at any time if the court finds that the modification is “necessary and proper” and in “the child’s best interest.[i]”
Commonly, a change of custody is due to the following:
- A change in the parent’s work schedule
- A move closer to the other parents
- A change in the child’s parental preference
- Irresponsibility on the part of a parent
- A move by one parent outside of the child’s area of residence
Child Support & Spousal Support Modification
Child support modifications may occur at any time if the court deems necessary, regardless of parental requests. This is due to the mandatory child support guidelines under California law. Alimony may be modified at any time prior to the end of the support period. The issue of spousal support modification is complicated and requires a thorough review by the court in determining whether to grant or deny.
When Will a Court Modify a Post-Judgment Support Agreement?
California law[ii] gives the court the power to modify, or terminate, a divorce agreement, unless the parties previously agreed otherwise. Courts do prefer divorce agreements that use language that prevents future modifications.[iii] That said, however, where a settlement agreement does not include preventative language against future modifications, the court will most likely consider support orders as modifiable.
There are several reasons why a support order may be need to be changed. Commonly, economic hardship is a principle factor in qualifying a former spouse for modification. The party seeking to modify the existing order must demonstrate to the court that a “material change in circumstances [iv]” has occurred since the final divorce order was issued. This means that the change in circumstances is significant, not a slight increase/decrease in salary or expenses. The moving party must demonstrate that the change is so significant that he or she is in a very different position from the time when the divorce agreement was issued, nor may it be a change that was reasonably expected at the time of agreement. [v]
The following circumstances are common reasons for modification of a support order:
- A sudden, unexpected job loss or reduction in income
- Unexpected medical issues and bills
- The ex-spouse receiving payments is no longer in need of that financial support
- The ex-spouse receiving payments has not made a good faith effort to become self-supporting
- The ex-spouse receiving payments is getting remarried and the support needs to be ended
How Soon After a Change Occurs Should I File for Modification?
Often, people will decide to wait a while before requesting the court to grant a modification to the agreement. Typically, they assume that the significant change will resolve in a short period of time and the modification is unneeded. For some, the change in circumstances may only be temporary.
However, if the circumstances does not improve, the court will not allow the modification to go back retroactively to the beginning of the changed financial situation. You need to act immediately when considering a modification due to a change in your circumstances, especially when finances are involved. We can properly handle your request for modification.
Process of Requesting a Post-Judgment Spousal Support Modification
The process involved in the preparation and completion of the required documents is complex.
1) Obtain and fill out the necessary court forms
- The following forms are required:
- Form FL-300, “Request for Order;”
- If you need information on how to properly fill out the Form FL-300, you can download the “Information Sheet for Request for Order,”Form FL-300-INFO.
- You will need to complete an “Income and Expense Declaration” on Form FL-150.
- You may need to use the “Spousal or Partner Support Declaration Attachment,” on Form FL-157. This Is used to address the necessary factors that the judge needs to consider when making a determination about a modification to long-term spousal or partner support. The form is optional; however, it ensures that you have addressed the required factors that must be proven to the judge in order to move forward.
- If you request needs additional room to explain the change in circumstances, you may use the “Declaration” Form MC-030, or “Attached Declaration,” on Form MC-031.
All of the above can be found on the California Courts website.
2) Review forms for accuracy
The Family Court does provide a family law facilitator to review the paperwork; however, it is highly recommended that you consult with an experienced attorney in the area of family law.
This will ensure a thorough examination of your entire case and will provide you with the necessary advice as to whether you are ready to proceed with the request for modification.
3) Make multiple copies of all forms
At a minimum, you should make two copies; one for you and one for your ex-spouse. The original copy is for the court. If a local child support agency is involved in the case, you will need to make three copies.
4) File the forms with court clerk and pay fees
If you are unable to pay the filing fees, you may be able to obtain a fee waiver.
The clerk will then give you a court date for review of the request.
5) Perform service of papers
You will then have to perform service of the papers on the former spouse along with a blank “Responsive Declaration to Request for Order,” Form FL-320, and a blank “Income and Expense Declaration,” Form FL-150 prior to your court date. It is important to remember that someone else, not you, serve the papers.
You are required to perform this service within a certain timeframe prior to the court date. That timeframe depends on the information filled out on the Form FL-300, which means that the service date is either sixteen (16) or five (5) calendar days prior to the court date.
6) File appropriate forms after service
Upon successful service, you then must file the following with the court:
- “Proof of Service by Mail,” Form FL-335, or
- “Proof of Personal Service” Form FL-330
7) Attend court hearing
Finally, you will attend your scheduled court hearing.
If you are experiencing a significant change in circumstances that prompted you to petition for a modification, the pressure of accurately filing these forms can be overwhelming.
