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Divorce Modifications

Post-Divorce Modifications

Although a divorce decree is the final order of a judge, its terms can be changed in two situations. If you think the judge came to the wrong decision regarding any aspect of your divorce, you have the ability to appeal that decision to a higher court, provided you do so within a narrow window of time following the issuance of your divorce decree. On the other hand, if something changes after the decree is finalized that affects certain aspects of the divorce, you may be able to file a motion to modify the decree to accommodate those changed circumstances.

Filing a Motion to Modify

• Find the correct forms: Most courts provide a form for divorce decree modifications. Especially in cases involving children, modifications are common as circumstances change. Keep in mind that after the period for appeal has passed, you can’t have the division of property modified. However, any ongoing obligations or responsibilities such as child support, spousal support, or child visitation are subject to modification if circumstances change. You may have to use a different form depending on whether you want to modify custody and visitation, child support, or spousal support. Go to the website of the court where your original divorce case was heard and see if there are modification forms available for you to download. You also might find paper forms at the clerk’s office.

• Draft your motion: To have a divorce decree modified, you must demonstrate that there has been a significant change in circumstances since the decree was entered. For example, if your ex-spouse recently got a promotion and should be paying more child support as a result, you can have the divorce decree modified to account for this change. In some states, court rules establish a rebuttable presumption that child support should be modified if the new amount calculated using the child support guidelines varies more than 10 percent from the original amount.

• Sign your motion in the presence of a notary. If you’re making factual statements in your motion, you should sign it in front of a notary public. If you don’t know where to find a notary, check and see if your bank provides free notary services to its customers. You also can find notaries at some private businesses such as check-cashing companies, or in the courthouse. Nearly every aspect of child or spousal support and visitation can be modified. If you’re the one filing the motion for modification, it’s up to you to prove that the change is great enough to require the decree be changed to accommodate it. For example, suppose your original decree had your kids coming to visit you every other weekend. However, your employer is about to transfer you to a new plant 500 miles away, which would make such frequent travel for such short periods of time unfeasible. In these circumstances, a judge might be willing to enter a modification with a more reasonable visitation schedule.

• Assemble your motion and make copies: Once you’ve signed your motion, assemble it and all attachments and make enough copies to send one to your ex-spouse and keep at least one for your records. Include any evidentiary documents as attachments. For example, if you are requesting the amount of child support be modified because you’ve changed jobs and have a significant change in income, you might attach copies of paycheck stubs. You also should attach a copy of the original divorce decree. Make sure you have a certificate of service and notice of hearing. These forms usually are available at the same place where you got the forms for your motion.

• File your motion: Take your originals and copies to the clerk’s office of the court that issued your divorce decree and file your motion to modify. The clerk will stamp your originals and copies “filed” with the date after you pay the filing fee, usually around $100. The clerk also will schedule a date and time for your hearing and include this on the notice of hearing attached to your motion.

• Serve your ex-spouse: After your motion has been filed, you must send copies to your spouse to provide notice of your request for modification and the hearing scheduled. You can contact the sheriff’s department or a private process serving company to serve the papers in person, or you can mail them certified mail.

• Attend mediation or pre-trial conferences as required: A motion to modify can become as lengthy and formal as a divorce trial itself. For this reason, many jurisdictions require you to complete mediation or attend a pre-trial conference before the motion is heard by a judge.

• Appear in court for your hearing: If your ex-spouse continues to contest your request for modification, or you are otherwise unable to reach an agreement, a judge will hear your motion and make a final decision on whether to modify the decree.

• Arrive at the courthouse early so you have plenty of time to park and go through security. Dress conservatively and professionally, and bring copies of all the documents you’ve filed along with any witnesses or evidence you wish to present.

• In court, rise when your name is called and speak only to the judge. Since you filed the motion, you will have the opportunity to speak first.

• After you’ve presented the reasons you believe the decree should be modified, the judge will give your ex-spouse the opportunity to present her side. Do not speak to her directly or interrupt her; speak only to the judge.

• After hearing both sides and any witnesses, the judge will issue her final ruling on your motion. You may receive the final order that day, or it may be mailed to you later.

Filing an Appeal

• Determine whether you qualify to appeal: You have a brief period of time, usually 30 days, after your decree is entered to appeal some portion of the judge’s decision. Either spouse can appeal a trial court’s decision to an appeals court. An appeal turns on what happened during the trial, not what has happened since the trial. You can’t introduce new facts or evidence on appeal – you’re only arguing that the trial judge’s decision was incorrect based on the information he had at the time. Keep in mind that settlement agreements typically can’t be appealed, because you both agreed to the terms. You may be able to modify the agreement if circumstances have changed.

• Consider hiring an attorney: Even if you didn’t have an attorney represent you at trial, appellate practice is considerably more complicated than trial practice, and divorce decisions are rarely overturned on appeal. If you did have an attorney, she may be willing to continue to represent you, or she may refer you to another attorney who specializes in appeals. Appeals arguments typically focus on issues of legal interpretation rather than factual disputes. Appellate judges generally won’t second guess a trial judge’s factual conclusions. An attorney will ensure that you have solid grounds for appeal and that all necessary documents are filed ahead of any deadlines.

• Draft your appellate brief: The appellate brief contains your legal argument as to why the trial court judge’s decision was wrong and should be overruled. Unlike your initial divorce petition, you likely won’t find forms to fill out for an appellate brief. You may be able to find briefs filed in other cases in the same court to use as guides. Typically an appellate brief argues the judge made a mistake either in applying or interpreting the law – not that the judge made a mistake of fact. For example, if the court concluded that your total income was $100,000 a year, you can’t appeal that factual conclusion. However, if the judge arrived at that conclusion because he included money that legally should have been excluded from your legal income for the purposes of calculating child or spousal support, that would be an issue for appeal.

• File your appellate brief: When you file your brief, you must also follow your appellate court’s rules for “perfecting” your appeal. These vary not only among states but also among appellate courts within a state. In addition to paying a filing fee, you typically will have to file a notice of appeal and order a trial transcript along with a written order asking the trial court clerk to send the trial court record to the court of appeals.

• Attend the appellate court hearing: After the appellate court receives all the documents for your case, it may hold oral arguments on either party’s request. No testimony or evidence is presented; rather, appellate attorneys argue their cases based on the record of the case at trial. Once arguments are heard, the appeals court, typically consisting of a three-judge panel, will decide whether to accept or deny your appeal. In most cases, unless your judge made a serious error, the appellate court will uphold the original decree and you will have to follow it.

How Much Does It Costs to Go Back and Modify My Divorce?

Divorce agree on the proposed, agree on the proposed change, alter the terms, change, change in circumstances, difficult to alter, difficult to alter the terms, divorce, divorce decree, ex-spouse, file a petition, file a petition to modify, modify, petition to modify, proposed change, reached an agreement, show the court, term in question, terms, terms of your divorce. Sometimes circumstances change after the judge signs your divorce decree, which lays out the terms of your divorce. It can be difficult to alter the terms of your divorce unless you can show the court the modification or appeal is justified. Once the divorce decree is signed, you have the right to file an appeal the terms of the divorce or a motion to modify certain specific terms. An appeal must be filed within thirty days of the original judgment. Modifications can be requested at any time after the divorce is finalized. If both parties agree to the appeal or modification, the lawyer may charge $2600 to $6800 to file the necessary paperwork for you and there is a filing fee as well. As long as both parties agree then it doesn’t matter if there has been a substantial change or not, the judge will usually grant it since it is by agreement. If one party does not agree to a modification, the lawyer may charge at least a $2,500 retainer to file it on your behalf. It can be difficult to alter the terms of your divorce since you will have to show the court a convincing reason why you want to modify your divorce. The most common type of modification involves child support and spousal support. They usually require some type of life change in order to modify (e.g., significant change in income, major medical event, etc.). To alter the terms of your divorce decree, one party much file a Petition to modify the decree. If you and your ex-spouse agreed on the term in question during the divorce process, then the petition would be to change certain aspects of the agreement.

If you and your ex-spouse did not agree on the term in question and the term was decided by a judge, then you would petition to change the judge’s decision. In the latter instance, even if you and your ex-spouse agree on the proposed change, you’ll still have to convince the judge to modify the court’s order. If you and your ex-spouse do not agree on the proposed change, you’ll have to argue against your ex-spouse and argue your case to the judge why your proposed change is necessary. If it is a prior agreement to be amended without both parties agreeing to the change, then you will need to show a change in circumstances that justifies the proposed change. If you and your ex-spouse do not agree on the proposed modification, you will need to file your Petition to Modify without an agreement and it will be set for a hearing. At the hearing, your ex-spouse can object to the changes and the two of you can litigate the issue to have the judge determine the contested issues for you. This can cost quite a bit in attorney fees, but either party can always file a Petition to Modify and have a hearing even without having reached an agreement with the ex-spouse. If you have reached an agreement in your divorce and file a Petition to Modify a few months after your divorce decree was entered, you may have difficulty since you agreed to the Settlement Agreement just a few months prior and now want to change it. There has likely not been enough time passed for there to be a substantial change in circumstances.

When you agree to a Settlement Agreement in a divorce, it is a binding contract between you and your ex-spouse. Like any contract, you agreed to it at the time, so a judge is not going to let you out of the contract very easily. The more time that has passed since you agreed to the contract, the more likely a judge is to let you alter parts of it or get out of certain aspects of the agreement as situations are more likely to change significantly over a period of time. Sometimes if former spouses still get along well, they may informally decide to change or modify certain terms of their divorce. For example, they may make informal adjustments to how they divide their property, how much one party pays the other for child support, and custody plans. It is not advisable for you to do this. If one spouse changes their mind, they can go back and hold you to the original terms and potentially get the court involved. Maybe you were getting along fine with your ex-spouse, and they decided you could keep the car, even though they got it in the divorce. Well, maybe you start dating again and they hear about it and get jealous. They can demand the car back, and you have to give it to them unless you want law enforcement at your door. Stick to the terms of your divorce and if you do find yourself in need of modification, contact us so we can get it done for you the right way.

When a divorce or paternity decree is entered, the court orders reflect the general circumstances in place at that particular time. If a substantial change occurs in the years after entry of your divorce or paternity order, the court will allow you to file a petition and seek a modification of the terms of the order with a post-divorce modifications lawyer in Utah. This is a legally complicated matter which requires a skilled and knowledgeable family law attorney. Generally speaking, rulings of a court, including decrees of divorce and paternity, are the court’s orders until modified by the court or by agreement between the parties. Whether or not a party may request the court to modify its order depends greatly on changes in circumstances, if any that may have taken place after the entry of the decree. Parties often seek relief from the court to modify court orders. Sometimes, both the parties seek the change to ratify something that is already taking place, such as a change in a parent-time schedule and wish to formalize the agreement they have.

Other times, the parties are not in agreement and seek the court’s determination of whether the order should be modified and this is the best time to have a family lawyer on your side. Common areas of post-divorce modifications in Utah include:

• Alimony
• Child Support
• Parent-time
• Custody

Modifications of court orders can sometimes be legally complex and hard to understand. Sometimes the order itself will dictate if and how an order may be modified. Often, discussion and mediation between the parties is a pre-requisite before a petition to modify may be filed. Having a post divorce modification lawyer in Utah on your side can help you can be fully informed of your rights.

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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

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