Family Court

Modification of marital settlement agreements

The life circumstances of divorced couples will necessarily change as time goes by. Domestic Relations law contemplates this and in certain circumstances allows a person to go back to court and ask for a change to the terms of the prior agreement.  

What can not be changed:  

Property division is permanent. Once the court has approved a division of property (the house, financial and retirement accounts, auto’s, etc.) this division of property is final and can never be re-visited absent a finding of extrinsic fraud.

A waiver of alimony can never be reviewed. If a person waives alimony in a final settlement agreement that is approved by the court, no alimony can ever again be requested. 

Alimony that is classified in the settlement agreement as “non modifiable” can never be reviewed. Sometimes people agree to a specific amount and term of alimony for settlement purposes.  When this happens, the payor gets a termination date (as opposed to periodic, or permanent alimony) and the payee can rely upon a set amount of money for a specific term.

Again, all “non modifiable” issues may be subject to later review should the court make a finding that one of the parties committed extrinsic fraud when negotiating the original settlement agreement.

What can be divided:

Custody: Issues regarding child custody can always be reviewed but there must be a showing of changed circumstances adversely effecting their well being. Exposure to violence, drugs, regularly missing school, medical or dental neglect, are all typical issues that are raised in family court when a party wants to change a parenting plan.

Child Support: Child support is reviewable should there be a change in custody or income. Courts are generally going to want to see a change in income of at least 20% (up or down) in order to find sufficient cause to modify an amount of child support. 

Periodic/Permanent Alimony:  As in child support, periodic alimony is modifiable based upon a change in income of 20% or more. Periodic alimony is also reviewable upon the retirement of the payor. 

Rehabilitative Alimony:  If a persona is awarded Rehabilitative Alimony it will only be paid for a specific term, at which time it ends.  Unless it is also classified in the settlement agreement as “non modifiable” it may be modified at the end of the term should the payee need more time to “re-habilitate”.

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