What is Modification?
The modification process is used to change an existing judgment (Court decision) or a prior agreement (stipulation/settlement) made by the parties in a divorce, custody or support case.
What can be modified?
Modifications are often used to change physical and legal custody, visitation and/or child support. They cannot be used to change the division of assets from a final divorce. Modifications are used in a number of common situations. Often times a decision made about custody of a child at age three no longer applies to the circumstances of the family when the child is age twelve. The financial situation of the parents could have changed requiring an adjustment to child support. One parent may be seeking to increase or limit visitation with the child. The standard for modification of custody, support and visitation is a “material change in circumstances.”
What is a “material change in circumstances?”
What is considered a material change depends on the facts of each individual case but could include the following:
- A change in a parent’s employment, income, health insurance availability and/or day care expenses
- A change in the child’s living situation
- Drug or alcohol use by a parent
- Mental health issues of a parent
- A parent’s incarceration
- The child’s own expressed preference, if age appropriate
- Other circumstances which were not present at the time of the original judgment or agreement.
When can I modify the support I receive or the support I pay?
A parent who receives child support will often seek to increase the amount of support when their income has decreased or other parent’s income has increased. A parent who pays child support will often seek to decrease the amount of support where their income has decreased or terminated due to job loss or incarceration. The income of both parents is considered when determining child support regardless of which parent the child(ren) lives with.
Under the Child Support Guidelines child support can be modified under the following circumstances:
1. The existing order is at least three years old; or
2. Health insurance previously available at reasonable cost is no longer available; or
3. Health insurance not previously available has become available; or
4. Any other “material change” in circumstances has occurred.
For more information on how child support is determined (click here)
For more information on other support related issues (click here)
When can I modify visitation?
Visitation can be increased, decreased or terminated when there has been a material change in circumstances since the time of the first order. This often occurs when one parent believes they should have more time with their child or when a parent believes visits with the other parent are harmful or dangerous for the child. Decisions regarding visitation are made under the best interests of the child standard.
What can Attorney Ellis do for me in a Modification case?
Attorney Ellis can advise you on whether you meet the requirements to modify a judgment or agreement. She will explain to you in depth what your legal options are and how they apply to your case. Attorney Ellis will help you make important decisions about the case and navigate the often confusing and frustrating legal process. She will assist you in obtaining the best result possible for your particular situation. Whether at a Motion Hearing on a particular issue or at a full Trial on all the issues, Attorney Ellis will attempt to negotiate an agreement that works for you and serves the best interests of your family. If an agreement cannot be reached she will zealously argue your position in front of the Judge so a decision can be made. She will be available to answer all of your questions and concerns. She will deal with the other party or the other party’s attorney throughout the court process so you don’t have to.
What will a Modification cost me?
Attorney Ellis offers free phone consultations where she will discuss your particular case and what it will cost. But generally Attorney Ellis will require a “retainer” to start the case. A retainer is a lump sum of money determined on a case by case basis. The retainer is held in a special client funds bank account. Funds are billed from the retainer for work that is completed on your case on a monthly basis. If the case is not completed before the retainer is exhausted, a second retainer is needed. Any money in the retainer that is not used at the completion of the case is returned to the client. The hourly rate and amount for the retainer will depend on the particular issues in the case but also depends on the number of contested issues, the complexity of issues, the contentiousness of the parties and other factors. During a free consultation, Attorney Ellis will assess your case and discuss the retainer needed to start work on the case.
What if I cannot afford a large retainer but I still need help?
In certain circumstances Limited Assistance Representation (LAR) is available. LAR is a new initiative in Probate in Family Court which allows a party to hire an attorney on a limited basis to help with a part or parts of a case. The attorney and party negotiate what part or parts of a case the party needs help with and what the cost will be. The attorney handles the part(s) the client wants them to and the client handles the rest. Often times a flat rate can be used for each part. The rate will depend on the particular issues in the case but also depends on the number of contested issues, the complexity of issues, the contentiousness of the parties and the attorney’s responsibilities. During a free phone consultation, Attorney Ellis will assess your case and discuss whether LAR would be available for you. For more information on LAR (click here)