Modifications of Separation Agreements and Court Orders

Modification Attorney in Charlotte

Modifying Court Orders & Separation Agreements

One of the core characteristics of a court order is that it is modifiable. This concept applies whether you have a consent order which you agreed to, or an order issued by the court for you after a trial or hearing.

Common Court Order Modifications

The most common area where we see attempts to modify a court order are in relation to issues regarding:

Only in very rare and narrowly defined circumstances will there be a cause to seek a modification of the property division (also known as equitable distribution) aspects of an order.

The Court Order Modification Process

You will not find the first step associated with modifying a court order in any book. This is because the first step is not required by law, and as such, many family law attorneys do not follow it. So, what is this mysterious first step?

The first step is simply the action of you or your attorney communicating with your ex-spouse or your ex-spouse’s attorney as to whether they would agree to modify the order’s terms. For example, if you are seeking a modification of child support based on an increase in the opposing party's income, it would make sense to reach out to the opposing side to see if they would be willing to perform a voluntary modification of the court order.

Before you spend money filing a Motion to Modify, it would be prudent to reach out to the opposing side and see if they would agree with a voluntary modification of the Court Order.

Another example would be if you are seeking a modification of your spousal support obligation because you have lost your job. In that event, assuming you can demonstrate to the other side that you lost your job due to no fault of your own, perhaps they would acquiesce to a temporary or permanent modification of the relevant provisions of your court order. If this is approved by the other side, the modification would be included in a new consent order, saving time, money, and energy, and avoiding the court process.

As a matter of efficiency and common sense, it behooves you to inquire into the other side's position prior to filing a Motion to Modify. What if they are not willing to participate in a voluntary modification of your court order and you still believe you have a valid cause for modification? In that event, you will need to file a Motion to Modify with the court. When you do so, either you or your family law attorney must pay careful attention to ensure that the proper basis for your request is set forth - particularity within your Motion to Modify.

If you would like to learn more about modification of court orders, please contact us online to schedule a consultation!

Separation Agreements

All issues related to the dissolution of your marriage can be included in the separation agreement. The terms and conditions regarding separation, child custody, child support, property division, (legally known as equitable distribution) and spousal support, (otherwise known as post-separation support or alimony) may be included in a separation agreement.

What Can Be Modified in a Separation Agreement?

Unless stated otherwise, the aspects of your separation agreement related to property division cannot be modified. In short, there is a common sense belief that property aspects of a marriage should be divided once and for all so that people have clarity and certainty going forward. Given this finality in regard to property division, this is a great reason why you must perform the appropriate due diligence and analysis in regards to the identification, classification, valuation, and distribution of the marital estate prior to the execution of your separation agreement.

Spousal Support Modifications

As to the issue of spousal support, there is a choice to be made within a separation agreement. Specifically, this is a matter that you would want to discuss with your attorney as there is an option to make a spousal support obligation modifiable or non-modifiable.

For various reasons, including fluctuations in the economy, changes in market conditions, and potential changes in employment and/or the associated salary, you may want to opt in for the inclusion of provisions within a separation agreement. Such provisions leave room for some flexibility or modifiability regarding a spousal support obligation.

Whether you are the supporting or supported spouse associated with a spousal support obligation, you may decide that you want economic certainty moving forward during the duration of the spousal support obligation. To be clear, there is no right or wrong way to handle the issue of the modifiability or non-modifiability of a spousal support obligation. However, this is something to be considered and evaluated in a consultation with an experienced family law attorney.

Child Custody & Child Support Modifications

These issues are always modifiable by the court as a matter of public policy. As such, there is no method that can affirmatively make determinations about your children which are completely reliable from a permanency perspective. Rather, issues of child custody and child support can always be modified with the filing of a Complaint for Child Custody and/or Child Support. The result is that you will end up with a court order that addresses the custodial/visitation and/or child support issues which were raised in your complaint. The remaining issues set forth in your separation agreement, including but not limited to spousal support and property division, will remain undisturbed as written in this agreement as valid and enforceable.

If you would like to learn more about modifying separation agreements reach out to us online or call (704) 286-0600 to book a consultation.

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