Amending a Divorce Agreement After it is Signed: A Guide
Overview of Divorce Agreements
In the context of divorce and separations, an agreement is a document that both parties to the action sign that sets terms for an eventual judgment on the issues of marital assets and debts, alimony or spousal support, child support, parenting time, legal and physical custody and just about any other issue that you and your spouse might be able to agree upon. The agreement must resolve the issues one or both of you have decided to litigate in your action for divorce or separation. A divorce agreement is designed to avoid the expense and time of going to court to settle these matters. The agreement is the official settlement of your divorce , as opposed to the decision of a judge. A divorce agreement must be notarized and signed by both parties and will be incorporated (integrated) into the final judgments at the end of your case. An incorporated agreement goes into the final judgments and is not subject to future modification while the incorporated agreement stands as part of the final judgments. It only becomes subject to modification if/when the agreements reach their expiration date (for example a child support agreement is in first position to the child support guidelines until the expiration date of the guidelines). While there are exceptions to the mandatory submission of an agreement to the court and incorporation into the final judgments (such as representation by counsel and temporary Orders), we are not concerned with such here. If you believe that your agreement will need to be modified in the foreseeable future, you should consult with counsel as to how to best protect your rights.
First Factors for Amending a Divorce Agreement
There are various reasons why a divorce agreement may need to be changed even after it has been signed. For example, just because you and your ex have agreed to an arrangement concerning such factors as child custody, alimony, child support, and asset division does not mean that something can’t happen to make some of these agreements difficult or impossible to abide by. Common reasons for the modification of agreements include:
Income changes – One of the major considerations when it comes to divorce is your income. If you are ordered to pay alimony or child support and you end up losing your job or taking a job with lower pay, you can go back to court to argue for a reduction in payments made. In addition, if you end up getting a raise, you can also petition the court for a modification of your payments based on the idea that you are not paying them based on your actual ability to pay.
Relocation – If one ex-spouse wishes to relocate to another state or even just another part of the state but the other ex-spouse gets to keep the kids – this can be a big sticking point. You may want to move to take a job opportunity, move to be closer to your new spouse, or move closer to family that can provide support. In such cases, the custody order will need to be modified.
Changes in child custody – If one ex-spouse gains full time or primary custody of the children and the other ex-spouse ends up having a significantly different income and ability to care for the children (or just more time on their hands), then the divorce agreement can be modified to reflect the new arrangement concerning child custody and support.
Legal Requirements to Change a Divorce Agreement
To obtain a modification of a divorce agreement, the party seeking the modification must demonstrate that there has been a substantial change in circumstances since the date of the agreement. The substantial change must be one that was not contemplated at the time the consent judgment or agreement was entered or executed. If the change in circumstances was contemplated, then a modification will not be granted. If a party seeking a modification satisfies this threshold requirement, than the trial court will go on to consider the equitable factors in deciding whether or not to grant the motion for modification. A mere change in financial circumstances will only rise to the level of a substantial change in circumstances if the change was not contemplated by the parties at the time the agreement was made. For example, a promotion or a demotion does not constitute a substantial change in circumstances per se; however, if the parties could not have contemplated the promotion or demotion, then it might rise to the level of a substantial change in circumstances. As one judge said, "the focus is on what was possible and reasonable to expect, not what actually happened."
To illustrate the point of what the courts consider to be a substantial change in circumstances sufficient to warrant an amendment of a divorce agreement, I will Endeavor to give a few examples:
- (1) In Murdock v. Murdock, 56 N.J. Super. 179 (App. Div. 1959), a mother petitioned for a modification of a judicially approved agreement awarding her the custody of her disabled child. The agreement called for the father to pay tuition at an Eastern boarding school. The father objected to the modification, arguing that even if his son were allowed to continue at the Western boarding school, his tuition at a private college was going to deplete the funds he had available for his son’s schooling. As a result the petition was denied because the court felt that the father was doing the best he could for the son.
- (2) In Nothdurft v. Nothdurft, 252 N.J. Super. 88 (App. Div. 1998), the parties’ incorporated property settlement agreement required the husband to maintain life insurance in an amount that would cover the amount of alimony that he was obligated to pay his wife, continuously throughout the duration of the alimony award. Further, the agreement gave the wife the right to "make claim" against the husband’s estate for any unpaid alimony when he died. The plaintiff filed a motion for an order requiring defendant to maintain life insurance to provide for the payment of future alimony obligations in the event of his untimely death. However, the motion was denied because the trial judge felt the parties intended to create a "ring of fire about alimony during the lifetime of the defendant but to leave open for adoration the prospect of its extinguishment at his death."
- (3) In Tevis v. Tevis, 256 N.J. Super. 108 (App. Div. 1992), the parties’ incorporated property settlement agreement called for the wife to make a one-time payment to the husband of $150,000, representing the husband’s share of the proceeds from the sale of a family home. Because the sale of the home occurred shortly after the divorce, the wife requested the amount to be paid to her over a period of time, rather than at once. However, the request was denied, and the court held that the one-time payment was sufficient because it was the result of arms-length negotiations.
- (4) In Ferrante v. Adorno, 103 N.J. Super. 465 (App. Div. 1968), the appellant sought the modification of an agreement denying her alimony because she required an economic foundation for the management of real estate. However, the request was denied because the courts felt that the accurate level of her needs was clearly resolved at the time of the agreement, and nothing had significantly changed.
Through the experiences of these four cases, it is clear that the standard of review for modifying a divorce agreement seems to be quite stringent. The courts are not likely to amend a divorce agreement unless extraordinary circumstances warrant the opportunity.
How to Change a Divorce Agreement
In most cases, the process of modifying a Divorce Agreement is initiated when one party files a motion with the court. This motion typically asks the court to either modify or terminate the existing support obligation, and must demonstrate that there has been a significant change in circumstances since the execution of the agreement or the last order. In some cases, a motion for modification becomes necessary only after the parties have entered into a consent order, which might be used to supersede the original Agreement.
If a judge finds that there is merit to the motion, a hearing will then be scheduled. Both parties will be required to submit financial documentation to the court, including income and tax records, bank statements, current living expenses and documentation related to any significant changes in income, such as evidence of job loss or a new job with a higher wage. The court will then review the evidence and make a determination as to whether or not the existing agreement should be modified. If a modification is deemed warranted, both parties will typically be required to submit a new proposed support agreement, which must also be submitted to and approved by the court. It’s worth noting that, depending on the circumstances, it is possible for a party to ask the court to suspend a spousal support order rather than modify it.
If both parties agree to a proposed modification, either verbally or in writing, there may be no need for the court to continue the process by scheduling a hearing. Conversely, if the parties cannot reach an agreement regarding the terms of a modified divorce agreement, then the issue may then be framed as a contested divorce action. Once the judge has made a ruling on the terms of the updated agreement, all parties will be required to comply with the new terms that are set forth by the court.
Filing a motion to modify an existing divorce agreement can be a complex legal matter, but with the help of an experienced Family Lawyer it is possible to seek a change to the initial terms if you have experienced a situation in which your financial circumstances have six significantly changed.
The Impact of Mediation on Changing a Divorce Agreement
Related to the cooperative aspect of modification, mediation can be used to change a divorce agreement. Mediation is the process of seeking a solution through an adult, neutral third party. Mediation is different from counseling (which focuses on communication skills) and therapy (which helps the individuals understand themselves in deeper psychological terms). In a mediation, the mediator is not there to solve anything for the parties but acts as a buffer and usually a note taker or suggester of language to accomplish the purpose.
If having a mediator present to assist is an option , it can yield fast results because it encourages parties to listen to each other and the proposed suggestions/guidance. A mediator will talk to both parties in the same room, and listen to both sides of the story. Going to mediation is voluntary but highly recommended because it avoids expensive litigation in front of a judge, which could put the parties back into their past blame-filled arguments.
Mediation could also resolve any "issues" a party had with the negotiations that created the divorce. The parties will be together in the same room, and an open discussion may resolve areas of disagreement.
Common Problems in Changing a Divorce Agreement
When the issue is spousal support or child support, the greater the time period that has elapsed since the original support was set, the more difficult it may be to convince the court that the change in circumstances you are advocating to support your position is a substantial change. When the time period elapsing is greater than 2-3 years, the court is even more concerned about whether the change is a long term change that is appropriate to be considered "substantial". A good example is loss of a job, where the job loss was for full time work but is permanent employment at far less money without benefits. Again, recidivism and intent to continue with a reduction, once the new job is acquired will undoubtedly come to the forefront. The courts do not wish to be in the position of being played, so to speak. Nor would you or I. When the issue involves the primary physical care parent’s relocation or move, the longer the primary care of the parties’ children is in question, the more the court is hesitant to make a move or grant permission for the move as requested. This is because our society has a norm of allowing a primary care parent to relocate to another part of our large state, but only if it is with the best interests of the child in mind and for the health, welfare and benefit of the custodial parent and the children. There are also differing rules concerning a child relocating away from the area with the parent with whom the child is not primarily living. When the issue involves allocation of parenting time, again this issue is addressed on a case by case basis. But where parties have set a calendar in months past, the court is again hesitant to disrupt the norm already affecting the children. Here is when a collaborative divorce attorney can truly add value, as they work to settle matters rather than litigate them. Sometimes, these parenting time issues are worked out by negotiation with the divorce attorneys.
Legal Help to Amend a Divorce Agreement
Just as you should have consulted with a divorce attorney before you signed the original divorce agreement, you should also consult with one if you are considering changes after the fact. You need to understand all of the risks associated with failing to comply with the terms of the original agreement, and an experienced family law attorney will also be able to explain how the aspects of your divorce pertain to the wide variety of laws and regulations. Family law is a complicated area of the law, and there are a number of ways that it can impact your life. Only an experienced attorney is going to provide you with the practical counsel that you need to get through your case in the most effective way possible. You should never be afraid to reach out to a legal professional since this is a cooling off period — your divorce will not go away just because you ignore it. Make sure you consult an experienced attorney who can guide you through this trying process.
Getting the Modification Agreement Signed
Once you have reached an agreement for modification or have received approval from the Court, you will be required to submit the modified agreement to the Court for approval. Often, an Uncontested Judgment and Decree will need to be prepared and filed with the Court after both parties sign the modification agreement. The Modification must be filed with the Court, and an official court order adopted. The Court usually has a short intake or review process, and then the court will set a hearing. After that, you (or your attorney) should receive a notification in your mailbox that a hearing was set. It is usually at this time the Court requires a $30 fee in cash or money order . If you are unrepresented, you can obtain the information by calling the Court. If you have an attorney, which is encouraged, the attorney will file the modification paperwork and pay the necessary fees to secure a hearing. Prior to the hearing, the Court may request a marital termination agreement and supporting documents. At the hearing, the Court will set out the procedure for finalizing the modification. If child support is being modified, most counties have set procedures for modifying child support. Often, the Court will require the parties to agree on child support and determine which parent will pay support and how that support will be paid. The Court will often suggest including a parenting plan if one is not already in existence.