MODIFICATION
The issues
of modification most often arise after the parties are divorced.
Typically, parties seek to modify spousal maintenance,
child support and visitation (Parenting
Arrangements). Unfortunately, the standards for
modification are not uniform but, vary specifically with the area in
which relief is sought.
Spousal Maintenance: The ability to modify an award of
spousal maintenance either upward or downward will depend on whether
it was the result of a judgment, order or surviving agreement. If it
is the result of a judgment or order the standard is a substantial
change of circumstances. If the maintenance payments are the result
of a surviving agreement then there is a higher standard to be met,
extreme hardship. The court will normally modify the amount of
maintenance irrespective of its source if the recipient is in danger
of becoming a public charge.
Child Support: If there is an agreement then the standard
for an upward modification of child support is an unreasonable or
unanticipated change of circumstances. Basically, this means that
the custodial parent must show that the child’s needs cannot be
adequately met based on the support currently being received. [The
availability for downward modifications depending if the child
support is being made under a court order or an agreement between
the parties.] The differences are complex and require a discussion
with counsel in each case. In any event, the person seeking a
downward modification because of a substantial change in financial
circumstances, must act promptly and not let unpaid arrears accrue.
Because a court cannot cancel accrued child support.
Child support received through the support collection unit is
eligible for bi-annual COLA adjustments if there has been an
increase of 10% or more in the consumer price index.
Custody and Visitation: These provisions may only
be modified upon a showing of changed circumstances since the
custody/visitation order or agreement took effect. It is not
automatically available simply because the non-custodial parent may
have remarried or has acquired a greater earning power where he/she
can provide more materially. The court in such an inquiry will
always look to the “best interests” of the child.
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