If you have been through the divorce process, you might wonder if the final agreement reached with your spouse is binding and unchangeable. Life is unpredictable, and you never know what might happen that will affect your ability to pay child support or alimony down the road. Luckily, modifying a divorce decree is relatively common. Read on to learn more about:
- Divorce Modification and Appeal: Two Different Avenues;
- The Reasons Why You Might Need to Modify Your Divorce Agreement; and
- Filing the Modification in Court: A Few Ways to Seek Change.
Divorce Modification: What It Is and It Is Not
Yes: a divorce decree may be modified or even challenged in certain circumstances. If either you or your ex-spouse file for a change through the court, the non-filing party must respond to it. This might take the form of raising issues with the filing or having your attorney read over it to see if there are any issues of concern.
It is important to note a divorce modification fixes one part of your divorce decree—alimony, child custody, property distribution, and so on. However, a divorce appeal challenges the entire divorce decree. Essentially, if you uncover facts after the finalization of the divorce or feel your divorce was handled incorrectly under Maryland law, you may have grounds to appeal the overall ruling.
However, and this is a big however, you can only file an appeal within the first 30 days post-divorce: meaning all necessary fact-finding and grounds for the appeal must be gathered within that period. On the other hand, modification can happen at any time.
Approaching the modification process comes in a few different forms. Though the length of a modification may last up to a half-year, there are relatively loose requirements for how you initiate the communication. For example, if you are able to reach out to your ex-spouse and notify them of the agreement change, there’s a chance the process may progress much more quickly and amicably. But, of course, you all still need to go through the courts to process the change.
What Are Reasons for Needing Modification?
Things change, and a previously agreed-upon divorce decree might not fit your situation down the line. If you want to modify your divorce decree, you need to show what changed.
An increase or decrease in income, changes in living arrangements, inheritance-related issues, or extenuating circumstances may prompt you to seek a modification to your divorce decree. Specifically, with child custody and care, your child’s aging may necessitate a modification based on expenses later in life.
Modifications are there to help you live equitably and raise concerns when you feel your divorce agreement negatively impacts your life.
All that said, this does not mean you can cheat the system and stop working or making money to dodge child support payments. As it is known, voluntary impoverishment is when a parent makes a conscious choice not to make money on purpose to gain benefits or avoid payments otherwise dependent on income. In the case of something like child support, a judge will impute income: prescribing an income based on that parent’s earning capacity. This prevents a parent from under-reporting income or purposefully trying not to make money to avoid payments.
If you can demonstrate an “involuntary” change in income (from lay-off, firing, etc.), then you have nothing to worry about—though you are not entitled to a modification simply based on need. Courts grant modifications as long as they are also in the best interest of the child.
In that, you can also motion for a modification based on your ex-spouse’s unfit parenting. Modifying custody in these cases involves showing in court why living in your home is in the better interests of your child than your ex-spouse’s and that circumstances have changed post-divorce that lead you to this conclusion.
Like a normal divorce, this is difficult to argue and requires a major burden of proof. Be sure to contact an attorney ahead of your court date to discuss your legal options when requesting a modification.
Filing for a Modification and Looking Forward
We mentioned earlier that, unlike an appeal, you may file a motion for modification anytime post-divorce. State law does allow this, but only one modification can be every three years by law. So, yes, you have the freedom to motion for modification, but with some time in between each motion. You may want to consider going about this in a few different ways:
- If you maintain contact with your spouse, you both may want to review your divorce decree every three years to ensure the agreement is fair.
- Alternatively, at the three-year mark, you are well within your rights to ask the Office of Child Support Enforcement to review the child support agreement within your divorce decree. You will need to fill out a request form and state the reasons for filing; keep your own copies for proof!
- You can also file the motion in the circuit court that issued the order.
Supporting your family is important, but you should only have to do it within reason. If times get tough, you will have the opportunity to modify your agreement.
We recommend having the help of an attorney during these times. Even though requesting a modification might seem easy because you know your life best, you never know when going to court and vying for a change will turn difficult. Contact our offices for a free initial consultation if you have any divorce-related issues or questions. We are here to help set your future on the best course possible.
