With our constantly changing lives, it makes sense that every state has procedures in place to allow divorced spouses to modify their original agreements. Divorced spouses often seek modification when one spouse is moving out of state, someone gains or loses a job, or other life-changing events occur. Whether the terms of your divorce were originally decided by a judge or you were able to reach an agreement with your spouse outside of the courtroom, you may be able to change the agreement with or without court involvement.
Consent to Modification
Just as divorcing couples can come to their own agreement on the terms of the divorce, your spouse may consent to a proposed change to the agreement without court approval. For example, if you are paying spousal support, and your ex later takes on a high paying job, she may agree to lowering the amount of support you are required to pay. If you can reach an agreement, it is best to put the new terms in writing and sign the document before a notary in case there is any dispute down the line. Certain amendments, such as changes to child support, often require specific language in the agreement to comply with state law, so you may consider consulting an attorney to ensure the new agreement is legal and binding.
Enforcement of New Agreement
Although you and your ex can agree to the modification of terms of an original divorce agreement, the court will likely not have authority to enforce the new agreement unless it is presented to, and approved by, the court. However, the new agreement may be considered a contract between you and your ex, so you could sue her in civil court for breach of contract even though a court could not find her in contempt for failing to honor the new agreement.
Requesting a Modification
Whether your spouse does or does not agree to changing the divorce agreement, you generally may request court-approved changes by filing a motion for modification. The particular requirements for filing this motion differ by state. You may obtain the appropriate paperwork from your family law court or an online document service provider. The court typically imposes a fee to file the motion, and you must serve a copy on your ex, who will have an opportunity to respond to the filing. Next, the court will likely schedule a hearing to hear evidence why the divorce agreement should change. If you and your ex agree on the changes to the agreement, you may have the option to file for a motion on summary judgment, which allows you to avoid a full trial as the court will only rule on the law, not the facts. You generally must submit an affidavit of facts signed by both you and your ex.
Standard for Modification
Generally, a court will order a modification of a divorce agreement only if there is evidence that a substantial change of circumstances occurred, and that these changes were not foreseeable at the time of the divorce. In addition, when it comes to changing the child custody arrangement, the modification also must be in the best interests of the child. If the court agrees to the modification, it is enforceable just as the original agreement was.