When should I file a modification case?
When should I file a modification case?You have a court order in place, but it’s not working. Things have changed since the last time you were in court. Sometimes it’s a change in income. If kids are involved, there are a number of things that can happen to make the current arrangement difficult or impractical.
When should you strike to try to change the arrangement?
First, let’s back up. The better question is: should you strike at all? Is it worth going to court over? Sometimes, it makes sense to file. But sometimes, it’s best to let things be. If filing is the answer, the next question is: when should you do it?
Either party may file for modification on certain issues if there’s been a “substantial and material change in circumstances.” That’s the fancy court language for the standard, but what exactly does that mean?
The standard for changing a court order is essential that there’s been significant/big/considerable change since the last time you were in court. Those are synonyms for substantial. The reality is that judge’s have a lot of discretion in determining whether to make a change to the order. Therefore, determining whether your particular change qualifies is not always easy.
For example, on one end of the spectrum, if there’s an alimony order and either party gains or loses $5,000 in earnings per year, that may not qualify for a change. On the other hand, if there’s a support issue, and a party becomes sick and therefore loses most of the party’s income, that will likely qualify for a change of the order. If there are children involved, and an hour has been added or removed from parenting time, that will likely not qualify for a change in physical custody. But if the schedule looks very different than the one you agreed to initially, a change may be in order. And there’s everything in between.
There’s also the question of when to file. If there’s been a change and you’re satisfied with how things are going, it may be best to stay put at least for the time-being. This depends on the circumstances. If the change happened organically, you’re happy with the change, and the other party isn’t complaining, there’s a benefit to allowing the changes to continue for some time to set a precedent.
For example, this is usually applicable to parenting time, where one parent may be getting more time with the child and is happy with it. Rather than file and upset the other parent and make the other parent defensive, it may make sense to continue the updated arrangement to establish a precedent before actually filing.
Despite the requirement for a material change in circumstances, at this time and according to the Child Support Guidelines (the beginning of 2020), either party can file for modification on a child support order if the amount that would result from the child support calculation run with the updated numbers (income and some allowed deductions) would result in a suggested child support amount that’s different from the amount in the order. This seems to conflict with the requirement for a “substantial and material change in circumstances.” However, if the new number is different than what’s in the old order, you may be eligible for a modification.
As outlined above, whether you should file for a modification and when is not always clear. If you think there’s a change that warrants filing, you may want to consider running it by a reliable family law lawyer before taking any action. A quality family law lawyer will be able to assess whether it makes sense to file under your circumstances and help you with planning.
If you have any questions about modification or family law issues generally, feel free to contact us.