Modifying Court Orders in NYC
Divorce and family law disputes don’t always end once a judgement or order has been issued from the court. Post-judgment divorce issues are common amongst recent litigants, as well as requests for modifications of final orders of custody, visitation, and support.
Modifying Child Custody
If you are interested in petitioning the court for a modification of your child custody or support order, one or more of the specific criteria must be met:
- A significant change in circumstances, such as relocation or a lifestyle change
- An unsafe environment for the child
- Abuse or neglect
- A change in income (for child support purposes)
Since child custody is determined in the best interest of the child, you cannot request a modification simply because you are unhappy with the court’s decision. It is not a valid reason to ask for a modification. However, if the child is in danger, their living conditions are unsafe, or one of the parents is relocating far away, you have grounds to ask for the change. Until a judge rules otherwise, you must abide by the terms set forth in your current order.
Changing Child Support Obligations
There are two forms of child support modifications: upwards modification and downwards modification. A child support modification can be requested by both the custodial and non-custodial parent, depending on which kind of petition is being made.
A non-custodial parent who has lost their job will typically ask the court to lower their child support obligation, especially if they are suffering from a loss of at least 15% of their income. Non-custodial parents can also petition the court for a downwards modification if their current obligation is putting a substantial strain on their finances.
On the other hand, a custodial parent will often be the party to request that the other parent pay a higher amount of support. This can happen when the non-custodial parent’s income increases, or if the child becomes ill or gets injured, resulting in unexpected expenses.
Some parties in an attempt to avoid post-judgment modification petitions, will include stipulations in their final support agreements that address increases in the support obligation. These stipulations usually include whether or not there will be an increase every 2 years, or how the parents will split unexpected medical expenses.
Modifying Divorce Judgments
Reaching an agreement and receiving a court ordered Judgement of Divorce doesn’t always mean your divorce is behind you. Former couples, both with and without children, will often need to return to court to settle disputes that arise after their case settles.
Changes to divorce agreements, much like those for custody, visitation, or child support, occur when one party suffers a substantial change in circumstances. This, too, can include a loss of employment or income, or serious and unexpected health issues. In some instances, a modification of a divorce decree will be sought when a piece of marital property cannot be refinanced or sold, or when one party is unable to meet previously agreed upon alimony payments.
Major health concerns, such as going on disability, and retirement play a big role in post-judgment modification petitions, especially for those went through a grey divorce. Since most baby boomers separate from long term spouses, they will usually be ordered to pay a higher amount of alimony (also known as spousal support). Retiring, or having to go on permanent disability, will impact the support payments being paid (or received) since there will be a sizable change in the income of one of the parties.
Petitioning the Court
Petitioning the court for a post-judgment modification is a complicated process. If you were to request a modification, the burden of proof falls on your shoulders. This means that you are responsible for presenting evidence to support your request. Depending on the reason for why you are requesting a post-judgment modification, you will need to make sure you attach at least one of the following exhibits to your motion:
- Letter of employment termination
- Official documents confirming disability benefits
- Medical records and billing statements for care
- Mortgage statements regarding refinancing
It is important to treat a modification motion in the same manner as you did your original divorce. Remember that it can be a stressful and drawn out process, especially if your ex-spouse does not agree with your request. It is likely that both parties will need to appear in front of a judge to argue their case, so be patient, and trust that your attorney has your best interest in mind.
Don’t Proceed Alone
Filing for a modification of a final court order is not an easy task, so do not attempt to bring forth a motion on your own. While it is best to have your previous divorce attorney handle your modification petition, it is possible to retain new counsel to represent you throughout the process. At Brian D. Perskin & Associates P.C., we help to provide peace of mind to our clients by advocating on their behalf throughout their request for modification. For more information, or to schedule a free consultation, contact us today!