Do Both Parties Have to Agree to a Modification?

Stange Law Firm, PC

After a divorce or paternity matter ends, one or both parties may want to somehow modify the judgment. In a general sense, modifications occur in cases of child custody, child support, spousal support, or alimony.

However, modifications to the property division in a divorce are generally not allowed. Once marital property and debt are divided in a divorce, that portion of a judgment is final. For this reason, property division must be thoroughly addressed during the divorce process.

Do parties have to agree to a modification for it to take place in regards to custody, child support, or spousal support? Can a judge order a modification if one party does not want it? This is a common question that some have.

The Standard to Prevail on a Modification

Even if both parties do not agree, a judge can enter a modification. To prevail on a modification, one party first has to file a motion or petition to modify. Next, the motion or petition is served to the other party, and who can choose to contest the modification. If that takes place, contested litigation begins. In some ways, this can feel like re-living the original divorce or paternity case for the parties involved.

The legal requirements vary by state, but in general, a party has to show a change in circumstance of a substantial and continuing basis to justify the modification. In some jurisdictions, a certain amount of time from the judgment might need to elapse. In other jurisdictions, there is no such requirement if there is a substantial and continuing change.

For child support and spousal support, a change of circumstance might involve an increase or decrease in income. It may also involve a change in the expenses of one or both of the parties. In terms of spousal support, the receiving party may have gotten remarried. Perhaps there is not a remarriage, but maybe the party receiving child support is cohabiting with another partner or spouse.

In terms of child custody, the possibilities are endless. A party might end up relocating far away or it could involve the wishes of a child. It might entail the educational needs of the children, the fitness of the parents, or a litany of other reasons. Contested custody modifications can often be some of the more acrimonious cases in family law.

How Do Judges Decide?

Many wonder how judges decide whether to modify a judgment if both parties do not agree. Ultimately, a trial or evidentiary hearing will need to take place where witnesses testify and evidence is submitted. A trial or evidentiary hearing could take a few hours, even an entire day and sometimes it can go on for days.

After the trial or evidentiary hearing, the judge decides whether there is a sufficient basis to modify the judgment. In some cases, the judge may decide to modify the judgment. Either way, most judges issue a written judgment explaining whether there was a modification and their findings of fact and conclusions of law.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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