Deciding to divorce is usually the most challenging thing a person can do in their life. Sometimes when things are not going smoothly in a marriage, couples hold to the hope that it will get better with time. But once things start getting worse, divorce is usually inevitable. The process is complicated, especially if children are involved, and it could be the most stressful period in a person's life.
Even after the entire struggle, you may not get all your wishes fulfilled after the final decision. Fortunately, the court allows both partners to challenge the final decision through a divorce decree or divorce modification. At San Diego Family Law Attorney, we help the spouse that is unhappy with the final result to challenge the outcome of the divorce proceeding, to have their most essential wishes considered. Therefore, if you have recently gone through a divorce and you would like to modify the court's decision, get in touch with us.
Basics of Divorce Modification
When a couple comes up with a decision to end their marriage, their state of emotions is usually not balanced to the point of agreeing on what should be done for both their best interests. At times, the best interests of one spouse could supersede those of the other spouse, and one partner could end up dissatisfied with the results. Once the divorce procedure is completed, and the ultimate divorce decree is issued out, there might be no hope for the unhappy partner to have at least some of his/her interests considered. The good thing is that in the state of California, the dissatisfied partner can always apply for divorce modification to compel the court to at least change some of its final decisions in the final decree.
The ultimate divorce decree usually outlines the obligations and rights of both partners regarding marital property division. It might also include custody order, child support order, visitation schedule as well as spousal support mandate, among other things. The decree is usually prepared after the court has heard the needs of both parties. The court makes its decision after considering the best interests of the two partners as well as the children if there were children involved. Even though this decree has the final names, it can be modified, even after it has been issued out. The main reason for such a modification could be a significant change in the situation of one or both parties in the decree.
For that reason, the party seeking the divorce modification will be required by the court to verify that indeed there has been a significant or material change in one or more situations after the issuance of the final divorce ruling. Once the appeal to modify the divorce decree is received by the court, the decision on whether to accept or reject it entirely rests with the court. It means that the court can either accept or deny the petition, depending on the nature of the changed circumstances.
Some of the significant or material changes that could compel the court to modify a divorce decree include:
- A change in the financial status of either party: If, for instance, the noncustodial parent is, suddenly, not able to make payments for child support on time, he/she may appeal to the court to change the divorce decree to prevent him from getting into trouble with the law for failing to honor the payment dates. This is also allowed in case the main custodial parent is not able to support the child/children because of a change in their financial situation
- Changes in circumstances that could significantly affect or interrupt the life of the child/children: This could happen if, for instance, the main custodial parent suffers a chronic illness or the parent paying child support loses their job. In this case, the best interests of the child will be considered, and the court might be compelled to modify the final decree.
- Relocation of one parent: Again, if a child is involved, there might be issues since the relocating parent will not be able to keep or visit the child as allowed in the final decree.
Note that violating any order contained in the final divorce judgment is usually a grave matter. For that reason, it is advisable to seek divorce decree modification on time to avoid facing legal penalties.
The Aspects of a California Divorce Decree that are Eligible for Modification
Our circumstances change all the time, causing some people to end their marriage. These are the same changes that will cause one partner to seek to amend their divorce decree terms. In California, divorce modification is possible, but only certain parts of the divorce decree can be changed. The basis for seeking divorce modification in the state are usually limited, making it essential to think about the divorce process and approach it with great caution.
However, sometimes circumstances change beyond what you could have possibly imagined, forcing you to seek the help of the court in changing the divorce terms you had previously agreed on. When this happens, and you are in California, know that these are the only parts of a divorce that are qualified for amendment:
Child Visitation and Custody Rights
The amount of time a parent gets to spend with their child/children can be changed after a change in some circumstances in either parent's life. Fortunately, California's family law allows divorced parents to make new settlements about custody and visitation any time, even after the issuance of the final divorce order. However, this is based on several assumptions, such as:
- That both parents will agree on the desired modification
- The desired change will be for the best interests of the child/children involved
Note that everything that is included in the divorce decree concerning child custody, visitation, and everything else about the child/children is usually based on their best interests. Therefore, if the court feels that the proposed modification will only offer convenience to the proposing parent or both parents, it will be challenged. There is no way the court will agree to make a change that will be detrimental to the child/children involved, especially in matters regarding the child's relationship with either of its parents.
If one parent feels that circumstances have changed and therefore, there is a need to change the divorce decree, they must first think about the best interests of the child and whether or not the other parent will be in support of the modification. With that in mind, the parent should proceed to file a request order with the court. Note that the court might be compelled to grant the modification request in the absence of the other parent's agreement only if it feels that the modification will protect the best interests of the children.
Child support in the state of California is calculated based on a statutory formula. For that reason, an appeal to modify it in a divorce decree must be based on proof of a significant change in situations. The only exception to this law is in case there was a mistake in the previous calculations. If, by any chance, the estimate was made at less than the calculation guideline provided by the statutory formula, the parent can apply for its modification. It is, however, an infrequent occurrence. Other than that, these are the only justifiable circumstances under which a parent can petition the court to modify child support in a divorce decree in California:
- If there is a change in income for one or both the parents
- If the parent paying child support loses his/her job
- If the parent paying child support is incarcerated. It is, however, subject to some exceptions
- If the parent has another child in a different relationship
- If the custody order of the same divorce decree has already been modified
- If the financial needs of the child concerning such matters as healthcare, child care, and education have changed
- If there are significant changes in the factors that were considered during the calculation of child support under the state’s family law
Alimony or spousal support is the amount of money that a family court orders one partner to pay the other for support after divorce. Calculations for spousal support in California are based on certain alimony factors. For that reason, the parent requiring modifications to spousal support must also adhere to these factors. Note that, just like custody and child support, spousal support obligation can change from a temporary order to a final one, as long as there is a mutual agreement between the divorced partners. It could also happen if one partner petitions the court, and there is a proof of a change in circumstances to warrant the modification.
In California, modifications to spousal support will only be allowed based on the change in the conditions that were used by the court to grant the alimony. For example, if the partner paying alimony loses their job or the partner receiving the maintenance gets a job or remarries. If in another case, the spouse was awarded alimony during divorce because they had a medical condition, there might be a need to modify that order if he/she recovered.
California Divorce Modification Process
If there has been a change in circumstances, which you feel has affected the above orders, it is advisable to speak to an experienced family law attorney. A competent attorney will be able to review the changes and advise you on the necessary steps to take. If after all the considerations you want to proceed with divorce modifications, here are the steps you can take to ensure that it is a success:
Send an appeal for the judgment to a court of appeals
Once a divorce process has been completed, and the judgment has been entered, California courts allow both spouses to appeal the judge's decision in a higher court. However, divorce settlement agreements cannot be changed on appeal if both parties were in agreement to the terms provided in the divorce settlement. However, if there were problems with the way the agreement was reached or there were other enforceability issues, either of the partners should feel free to appeal the judge's decision in a court of appeal.
Therefore, if you feel that there was a significant error during the trial, which could have led to an unfair judgment, you can kick-start the appellate process by sending a notice of appeal to the other partner. Note that there are stringent procedures as well as deadlines when it comes to serving and filing such notices. That is why you need the help of an experienced family law attorney.
The problem with the appeal process is that it is very long and expensive. Also, it may not provide the exact results that you are seeking. In its place, you might opt to file a motion to petition the judge to modify the terms of the divorce decree. The filing of this motion will happen in the same court where the original judgment was made.
A motion to modify the divorce decree
It is a much more straightforward and less expensive process. It is also the best way to achieve changes to certain aspects of the decree. The request to change any of the orders mentioned above can be made by filing a motion with the same court where the decree was issued. When writing the proposal, it is essential to specify and demonstrate the changed situations for the request to be granted. If, for instance, you have lost your job and you were given custodial rights, there is a need to explain in the motion that the change in your circumstances will make it hard for you to care for the children.
Divorce modifications do not always have to be temporary. They also do not need only to address a small part of the original divorce decree. They can be permanent and could make significant changes in the underlying structure of your divorce agreement. They can, for instance, change a child support directive, the terms of child support in the original order, and establish or do away with spousal support, depending on the changed circumstances after divorce.
Can Informal Agreements in a Divorce Decree Be Modified?
It is worth noting that any informal agreement between the divorced partners regarding terms in the final divorce agreement cannot change the terms in the decree. The two parents, with the help of their attorneys, may, for instance, decide to either reduce or increase child support payments because of changing circumstances. If this is not done through petitioning the court where the decree was issued, it will not change any terms in the order, and the set amount on the decree will still prevail.
If things change in the future, and the custodial parent decides to enforce the terms of the divorce decree, the parent paying the support will be forced to clear all the arrears despite the informal agreement. This parent can also get into trouble with the law for contempt of a court order.
For that reason, it is advisable to have the divorce decree modified legally and to get a new order from the court to avoid facing legal issues in the future.
What can a Family Law Attorney Do For You?
The legal process regarding family issues, especially those that pertain to divorce, can be complicated. That is why it is advisable to seek the counsel of an experienced family law attorney. With his/her skills and experience, you will be able to file the right documents, meet deadlines and also make the right decisions that will safeguard your rights and those of your children, if children are involved in the divorce process. The most important reasons why you need an attorney include:
- For legal protection: There are a lot of disagreements when two marriage partners are ending their marriage. In some cases, some greedy partners will do anything to frustrate the process or their spouse, just to get back at them. A family law attorney understands the law and will use his/her skills and knowledge to safeguard your legal interests and get you the best possible outcome.
- For correct filing of legal documents: The filing of documents is an essential step in every legal process. If you file incorrect documents or the right documents are not filed on time, it may threaten your chances of getting what you are seeking from the court. the help of an attorney goes a long way in ensuring that your documents are well prepared and filed on time
- For peace of mind: The divorce process can be very stressful, and sometimes it takes up more of your emotions and energy. Things get more comfortable when you know that there is someone on your side who understands what you are going through.
Find a San Diego Family Attorney Near Me
If your divorce has already been finalized, but circumstances have changed that might affect some of the terms in the decree, it may be time to have it modified. If you are in San Diego, CA, get in touch with us. At San Diego Family Law Attorney, we have a team of well trained and experienced family law attorneys who understand the process better and are willing to walk with you. Call us at 619-610-7425 today for the best possible outcome.