Is My Divorce Judgment Modifiable?
A divorce lawyer discusses modifying a client’s divorce judgment
I feel my divorce settlement was unjust. What can I do to make it more equitable? If you’ve found yourself feeling this way, let the DBMA Family Law team help you understand what’s possible and what’s not, and how to work with legal counsel for the best possible outcome.
I want to modify my divorce judgment — can I?
It depends. Perhaps the best place to start is to tell you what isn’t modifiable when it comes to a divorce settlement so that you can focus your energy and resources on what’s possible.
Property division cannot be modified. Once the court has made a determination in that arena, it’s considered settled law. (Though there are very slight exceptions.)
This is why we work closely with our clients to create the best possible outcomes during property division negotiations.
The goal should always be to divide marital assets fairly and equitably, which is why Oregon is an equitable distribution state. It’s important to note that equitable does not always mean equal.
You can typically expect an even 50/50 distribution of all assets acquired during the marriage. The Court will consider many factors, including all real property, accrued debt, gifts and inheritances, economic and non-economic contributions to the household, as well as future potential education and employment opportunities for each party in order to determine how all assets and debt should be divided. Special rules apply to inheritance and gifts received during a marriage.
It is in this phase of negotiation that you need to work with your counsel to achieve the outcome you want and deserve while also knowing when to say when. Once property has been divided, in most cases, that’s that. Work closely with experienced, effective counsel as this is (typically) your one shot at equitable property distribution.
So what aspect of my divorce can I modify?
While modifying property division is rare, there are more common aspects of a divorce that can be modified. One such area is child support.
Assuming both parents live in the state of Oregon, there are a few different ways in which you can go about requesting this modification.
Administrative modification of child support in Oregon
Administrative modification — distinctly different from a court-ordered modification — can take about four months or longer to be finalized. We recommend that you focus on a positive outcome while also realizing that things might not be determined in the manner you want them to be. The court will always err on their interpretation of what is in the best interest of the child. Here’s what that process looks like in practice:
Modification of the existing child support order is requested by one parent via the appropriate forms
The request is reviewed by Oregon’s Child Support Program before creating and sending a proposal to the other parent
Once the other parent has received the proposed modification, both parties have 30 days to correct any inaccurate information, approve the proposed modification, or request that a hearing be scheduled
If neither parent contacts the Oregon Child Support Program Offices within 30 days after the modification has been presented to the other parent, then the program offices will finalize the request approximately 34 days after the date it was served. Any corrections made will give each party an additional 30 days to respond. Should a hearing be requested, then there are other additional steps that need to be taken in order to undergo an Administrative Hearing.
3 year review of child support
This type of administrative modification that can be considered for modification every three years does not require proof of significant changes in circumstances since the entry of the original order.
If you request a modification of support prior to three years from the entry of the last child support order, you will have to prove that there has been a significant and unanticipated change in circumstances.
Factors that will be considered include:
A change in the child’s parenting time with either party
A significant change in the child’s needs
A change in the number of children in need of support
A significant change in income of either parent
In the instance that a parent disagrees with the request for modification, a party can request a hearing where a judge specializing in administrative law will make the final decision on modification.
Court-ordered modification
If you don’t want to wait three years in order to propose the modification of a child support agreement, then you can go through the court system in order to make this request. Of course, there are no guarantees and it is strongly advised that you employ legal counsel in order to effectively make your case. Just like in the administrative process, you will be required to provide proof of substantial change in circumstances, including a significant change in income (for either party), having more children, or a change in childcare.
What about amending custody and parenting time?
Similarly, parenting time can be modified based on the best interest of the children.
Amending a joint custody to sole custody determination is also relatively easy. The filing of a motion to modify a joint custody award is evidence that there has been a change in circumstances. In this context, the court will review a list of statutory factors, weigh the results, and make the determination based on what is best for the child. On the other hand, a custody “flip flop” or going from one parent having sole custody to the other parent, is quite hard to achieve.
We always recognize the guidance of legal counsel specializing in family law. We can help bring the big picture into focus and make recommendations that are in the best interest of the child in the eyes of the court and in your own.
Can Spousal support be modified?
Yes, spousal support can be modified. Similar to a child support modification, the court will require proof of a significant and unanticipated change in circumstances since the entry of the original support award to modify spousal support.
Other factors to consider when pursuing modification
Now, just because child support can be modified, this doesn’t mean that it’s easy (or even that it’s always advised).
There are actually reasons not to request modification. Cohabitation with a new partner or a new marriage are not always a sound reason, though they sometimes are. One question to ask yourself: Does your new partner’s income replace the need for the support from the former spouse? Another question to ask yourself is does that matter? Both parents are responsible for your child’s well being.
Remember that people who have variable incomes, like realtors, contractors, and entertainers, can be difficult cases to modify. Essentially, the court will look for income trends to make the best possible decision.