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Paul N. Mirabelli, Esq

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Paul N. Mirabelli, Esq

Key Takeaways:

  • There are three major reasons why people seek Post-Divorce Modifications: alimony/spousal support, child support, and custody and/or visitation arrangements.
  • To determine whether a Modification will be granted, the Court considers a number of factors, depending on the reason for the requested Modification.
  • The Court can then decide to either grant or deny the request for Modification.

Generally, there are three major reasons why someone would seek to modify a final judgment of divorce:

  • To try to modify alimony or spousal support
  • To try to modify child support
  • To try to modify custody or visitation arrangements

If the person was attempting to modify alimony/spousal support or to modify child support, there are standards that would need to be met for each. Specifically, there has to be a permanent and substantial change in circumstances that would warrant a modification of either alimony or child support in the eyes of the Court.

When it comes to modifying alimony, there are a number of factors that a Court would consider. One of the primary factors has to do with a change in income—whether that has to do with a change in income for the payor or a change in income for the payee. Usually, these requests are made by the person paying alimony, claiming that they have lost income and requesting a reduction or termination of alimony.

If the request is made by the payor of alimony because of loss of income, the Court is going to look into a number of subfactors. These include:

  • Reason For Loss Of Income: For example, the Court will consider the reason for the loss of income. If the person lost their job or had their pay cut, was it because they were being fired or disciplined for their actions, or was it because they were being laid off or taking a pay cut irrespective of their actions?
  • Good-Faith Efforts To Regain Previous Employment Or Obtain Similar Employment: The Court will also ask the payor to show that they’ve made documented efforts to replace the lost income or employment, or to pursue alternate employment or forms of income in their field. Did the payor make reasonable efforts to save or regain their job, or to prevent their pay cut? If not, have they been looking for a different job similar to the one they had, and if so, how?
  • Good-Faith Efforts To Gain Any Sort Of Employment, At Any Level: In this sort of alimony case, the Court will likewise examine whether the payor is making a good-faith effort to find employment at any level, in any field. The Court expects able-bodied people to fulfill their obligation to pay alimony however they can. Therefore, if the payor can’t get their old job back or find a similar job, they will be expected to make a good-faith effort to find any sort of job in light of their circumstances and existing opportunities.
  • Health Of The Payor: The Court will consider the health of the payor, and how their health affects their ability to obtain employment or additional source of income. Is the payor’s ability to get gainful employment hindered by a health condition or disability?
  • Severance: The Court will request information about any severance award that the payor may have received in connection with their loss of employment. If there is an award or severance payment, the Court will factor that into their decision.
  • Other Changes In Financial Circumstances: The Court will consider most serious changes in the financial circumstances of the payor, as well as the financial circumstances of the payee, that may have occurred since the date of the original Order. This will include the extent to which the changes are attributable to enhanced earnings or financial benefits received since the date of the Order.
  • Terms For Remedy: Finally, the Court will determine whether there should be a temporary remedy subject to terms. These terms can include continued efforts to regain employment by the payor.

Another major reason that people seek to modify alimony is if there is cohabitation. Alimony can be suspended or terminated if the payee cohabitates with another person. Cohabitation is defined as a mutually supportive intimate personal relationship in which a couple has undertaken duties and privileges which are commonly associated with marriage/civil union, but does not necessarily maintain a single common household.

When the Court is attempting to discern whether the payee is cohabitating with someone, they will look at a number of factors, including:

  • Whether the couple has intertwined finances
  • Whether the couple has joint bank accounts
  • Whether the couple has joint real estate and joint debts.
  • Whether the couple is sharing or has joint responsibility for living expenses
  • Whether the couple’s relationship is recognized within their social and family circles
  • Whether the couple live together
  • How frequently the couple are in contact
  • How long the couple has been romantically involved
  • Whether the couple shares household chores
  • Whether the payee has received the promise of support from the other party in the couple
  • Any other evidence that might be relevant to discern whether the couple is cohabitating.

When it comes to attempts to modify an Order for child support, the Court will look at many of the factors it looks into for an adjustment to alimony. However, in child support cases, the main factor that the Court will look into is if there has been a permanent and substantial change in either party’s income.

If the payor’s income has decreased, they can seek a downward modification of child support. If the payor’s income has increased, then the payee can seek an upward modification.

However, it should be noted that in order to approve a modification to a child support Order, the corresponding changes in income have to be permanent and they have to be substantial.

When it comes to seeking modification of an Order for custody and visitation arrangements, there is a different set of rules and standards. Custody and visitation provisions of any final judgment of divorce are always temporary. If circumstances change, then that could lead to a change in a custody and visitation arrangements. There are a number of things that are considered by the Court as factors in changing a custody or visitation agreement. These include:

  • If one or both of the child’s parents choose to move, and the current visitation or custody arrangement has to be adjusted accordingly
  • If one parent is ignoring or going against the current visitation or custody arrangement, and the other parent is attempting to enforce the arrangement
  • If there are concerns of neglect or abuse by either or both parents, and either the non-offending parent or a responsible third party is suing to remove custody or visitation from the abusive or neglectful parent.
  • If one parent’s work schedule or field has changed, and the visitation or custody arrangement has to be adjusted accordingly.
  • Changes in living conditions and the ability (or lack thereof) of one parent to provide care for the child or children. This typically happens when one parent has a health problem or if one parent’s job responsibilities have changed so that he can no longer maintain the same parenting time that they had previously agreed to.

Another major reason that parents ask for amendments to custody or visitation arrangements has to do with children rather than parents. That is, when the needs of the child or children involved have changed, either due to their health, their age, or activities.

As kids get older, they participate in more activities, and quite frankly, they don’t want to spend as much time with their parents. They would rather spend time on their social activities and being with their friends.

Typically, these types of modifications are discussed by the parents beforehand and there’s a mutual agreement as to what is being requested. However, if one parent is suggesting a modification that the other parent does not agree with, the Court will decide whether the request for the modification is valid.

The first step to this process is that the Court will order custody and visitation mediation.

If mediation doesn’t work, then the parties may have to go back before a Judge and have what’s called a plenary hearing. This is similar to a mini trial, which can be very expensive.

If you are attempting to amend a custody Order, there are a few things you can do to prepare.

  • Prepare a detailed journal or report that demonstrates any consistent issues with the custody/visitation arrangement.
  • Get copies any police or Court records regarding enforcement of Court Orders
  • Procure any evidence of a parent or child’s new schedule
  • Procure any proof of relocation
  • Get copies of any medical, school, or work records that may be applicable.

If there is a threat of danger, or even an imminent source of harm to the child’s wellbeing, then the Court may consider coming in and making an ex parte ruling and remove the child from the dangerous situation.

If this happens then the Court will rule on an ex parte application to address the situation, which means that only one person, will be heard by the Court in connection with an emergency modification, these types of modifications are to prevent a child from having to remain in dangerous situations. This is necessary to protect the child.

For more information on Post-Divorce Modification Of Court Order, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (732) 733-2830 today.

Attorney Paul Mirabelli

(732) 733-2830