After a separation or divorce In North Carolina, the parties involved have to make some important decisions on how to divide property, pay support, or take care of their children. When couples can mutually agree on their future arrangements, they may be able to reach an enforceable agreement on their own through an agreement and consent order. However, if they cannot agree, the family court in North Carolina make the decision and issue a binding court order.
Over time, the situations may have changed for one or both of the former couple. These changes may include moving away, getting remarried, losing a job, or having more children. Based on these life changes, the parties may want to make changes to their divorce agreements or court orders. Your North Carolina family law attorney can help you file for post-judgment modifications to consent or court orders.
Changing Agreements or Court Orders After Divorce or Separation
Just about any of the issues decided after a separation or divorce can be modified. This is known as a “post-judgment modification.” Agreements or court orders that can be modified include:
Not all agreements require a court modification. If a couple agrees on how to divide property after a divorce, child custody plans, and spousal support, they can negotiate their own agreement and consent orders. These agreements may not require any court intervention and can be decided between the parties alone.
If the individuals later want to make changes to a custody agreement, property division, or separation agreement, they can try to come to a mutual decision to make those changes. However, if one party wants to change the agreement or consent orders, he or she cannot make changes to the agreement without both sides agreeing. If only one side wants to change the orders, they will have to get a post-judgment modification through the court.
When custody, property division, and spousal support are decided by the court after a divorce or separation, only the court can change or modify the order. Even if the parties agree they would like to change the court order, they must have the court approve of the change and issue a new order.
In most cases, for the court to make a post-judgment modification of an agreement or court order, there has to be a substantial and material change in circumstances.
Substantial and Material Change in Circumstances
Circumstances need to be substantial and material to justify modifying divorce orders after the court has already decided the issue. A small change in circumstances is not generally enough to modify agreement and consent orders. Even if you think the circumstances have changed a lot, the court has to find a substantial change in circumstances before they will modify agreement and consent orders.
What constitutes a substantial and material change may depend on the specific situation, the time period involved, whether the change is permanent, and how any children may be affected.
Any changes to the child custody plan will be based on what “will best promote the interest and welfare of the child.” Increased cost or inconvenience to the parents are not as important as how the children will be impacted.
Circumstances that could justify a change in the child custody agreement could include changes in:
- The child's healthcare needs;
- The child's educational needs;
- Substance abuse problems with a parent;
- Mental health problems of a parent;
- A parent moving in with a new spouse;
- Relocation of a parent out-of-state;
- Ability of a parent to care for the child;
- Safety of the child; and
- All other relevant factors.
However, just because a parent relocates or moves, it may not be considered enough for the court to modify the child custody order. Added inconvenience or higher costs of travel to spend time with the child may not be a substantial and material change. However, if increased travel would be disruptive to the child's well-being, then the court may decide to modify the child custody order in the interests of the child.
In North Carolina, property is divided after a divorce based on “equitable distribution.” Separate property generally remains the separate property of one spouse, including property that existed prior to the marriage. Marital property is all property that was acquired during the marriage until the date of separation. Divisible property is defined as all appreciation and diminution in value of marital property occurring after the date of separation and prior to the date of distribution.
While the court could modify post-judgment orders on property division, it rarely does so. This is because property division is generally a one-time issue and not an ongoing obligation like child support or alimony. However, if changed circumstances were significant enough, the court may modify post-judgment property division orders.
For example, if a former wife found that her former husband had a secret bank account that he used to hide money from his wife, the former wife could seek a post-judgment modification. In addition to any criminal charges the husband could face for lying to the court, a judge could change the property division order to give the former wife an equal share of the marital property that was hidden from the court.
Spousal Support and Alimony
Spousal support, sometimes called “alimony,” is ongoing, long-term financial support that is paid from one spouse to another. Spousal support can be decided between the parties through a separation agreement or by the court.
There are a number of situations that may result in modifying a spousal support order. This generally involves changes that affect the financial situation of one or both parties. Factors that could result in a post-judgment modification may include:
- Loss of a job;
- Getting re-married or living with a new partner;
- Mutual agreement to modify spousal support;
- Financial Emergency; or
- Additional support obligations to another ex-spouse or children.
Post-Judgment Modifications to Child Support Orders
Both parents have a legal responsibility to provide support for their children. Child support payments are based on the North Carolina Child Support Guidelines. Child support orders are determined by the court and not by agreement by the parents. The child support amount depends on a number of factors, including:
- Custodial arrangement
- Income of both parents
- Expenses of both parents
- Number of children
- Prior child support payments
- Health insurance premiums
- Work-related child care costs
- Other extraordinary expenses
Any changes to these factors could result in a change in the child support orders. However, one or both parents need to file for a modification of child support before the child support payments can be changed. The most common reasons to modify child support obligations include:
- Change in the custodial arrangement
- Loss of a job or major changes in the parents' income
- Change in the number of children
- Additional child support payments
- Increased insurance, childcare, or other extraordinary expenses
Post-Judgment Modification Hearings
Either party to an agreement or court order can file for a post-judgment modification. Your family law attorney can file for a modification including the basis for requesting a change. The other parent or former spouse will get a copy of the motion and have a chance to respond. If necessary, the court could hold a post-judgment modification hearing to determine whether or not to change the agreement and consent order.
Jerkins Family Law
Changes in your life may mean you should change the agreement or court orders from your separation or divorce. If you want to make post-judgment modifications to child support, child custody, or spousal support orders in North Carolina, Jerkins Family Law is here to help. Located in Raleigh, Jerkins Family Law is committed to helping our clients in their time of need. Contact us today and see how we can help you and your family.