If the former spouses agree to modify terms of the original decree, the agreement must be in writing and submitted to the court. Sometimes a hearing is held to ensure both parties actually agree to the modified terms as stated in the agreement. Once the court is satisfied, the agreement is signed off on by the judge and becomes a court order, which is binding on both spouses. Courts always encourage former spouses to agree on modification terms, rather than be pitted against each other, as this saves the cost of litigation and prevents the courts from having to make a decision for the spouses as to the modified terms, which neither spouse may like.
Motion for Modification
If one of the former spouses wants a modification but the other does not, the process of modifying the original divorce decree begins with a motion for modification. The motion is filed with the court that issued the original decree. The motion must then be served on the other spouse.
Response and Hearing
After the motion is served, the other spouse typically has a matter of days or weeks in which to file a response, after which a hearing is held. If you want a modification, it's up to you to present proof of the change in circumstances that warrant the modification. If the motion is to modify custody, child support or visitation, you must also present evidence to show the court why the modification is in the best interests of the children.
Substantial Change in Circumstance
The accepted ground for modifying a final divorce decree is a substantial change in circumstances. For example, if your ex-spouse was ordered to pay spousal or child support and gets a substantially higher paying job, this may warrant a recalculation of the support amount; or if your ex-spouse with joint custody begins abusing the children or drugs and alcohol, this may warrant a change from joint to sole custody.
Enforcement of Original Decree
If your ex-spouse fails to comply with the original decree, you can file a motion for contempt and seek enforcement of its terms. Failure of the other spouse to comply after being held in contempt of the original decree can result in criminal charges, fines or jail time. Examples of instructions in the original decree that a spouse may not comply with include payment of child support, adding minor children to a work health insurance policy, or adding the former spouse as a beneficiary on a life insurance policy for benefit of the minor children.
Failure to Pay Child Support
Failure to pay child support ordered in the original divorce decree may result in the state taking action to enforce payment. This means the state, rather than the former spouse, might take the non-paying spouse back to court, for example, to obtain wage garnishment of the monthly ordered amount. This type of action does not require the former spouse to make a motion to the court or pay any of the expenses involved in the action.