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.
