Family Court Orders and legal agreements are not written in stone; as life changes, so do the circumstances and dynamics of former spouses, parents, and their children. An Order or Agreement that is entered one day may later prove to be unsuitable. This opens the door to potentially modifying the prior Order or Agreement.
However, modification requires more than simply being unhappy with an Order or Agreement and wanting to change it. Whether you are the party requesting a modification or the one who opposes it, having experienced legal counsel is essential to protecting your rights and interests and making your best case. Count on the Garden City, NY family law attorney of The Saul Law Firm, LLP.
What is Modification in New York?
When a court enters an Order, or spouses or parents enter into an agreement between them, it is expected that the Order or agreement will suffice indefinitely for the parties. But with time, the terms of the agreement may become impractical or unfair. There are various reasons why a party may desire to modify the prior Order or Agreement, some of which are discussed below.
Modification requires filing a petition with the Family Court, or a motion in Supreme Court, laying out the reasons for the request, and explaining what the proposed modification should be. The parties to the original Order or Agreement may negotiate and agree to revised terms between them, but the Court will need to issue an Order that formalizes the modification. Unless and until the Court agrees to modify, the parties are bound by the original Order or Agreement.
When Can a Party Modify an Order or Agreement?
Either party to a Court Order or Agreement may request a modification if there has been a substantial change in circumstances. In other words, merely disliking or being unhappy with the terms of the original Order or Agreement are not sufficient to modify it. Not only must a party prove the change in circumstances, but if the Order or Agreement involves a child, the Court will consider whether the requested modification is in the child’s best interests.
These are a few of the most frequently cited reasons that former spouses and parents in Garden City request a modification:
- A parent or former spouse begins earning more or less money than before
- A parent wishes to relocate to another state to take a new job
- A former spouse remarries or begins to cohabitate with someone
- A child’s needs change, including situations in which the child now has special needs
- A parent has developed a drug addiction or is otherwise unfit to have custody
- One parent interferes with the other parent’s relationship with the child
- Either party is unable to abide by the terms of the divorce included in the Order or Agreement
Put simply, modification is the option available when the rights or interests of the former spouse, parents, or the child are at issue. It may also be necessary to modify if a party is at risk of contempt for not being able to live up to the requirements of a Court order or Agreement. Before violating the Order or Agreement, they should seek legal counsel in Garden City and request a modification.
Which Orders and Agreements Can Be Modified?
Common types of modifiable orders and agreements are:
- Child custody and visitation: Any change with the parent or child which makes the current custody and visitation Order inadequate may justify a change. This includes issues that may jeopardize the child’s best interests.
- Child support: Either the parent who pays child support or the one who receives it may experience a change in their financial condition by way of a job loss, promotion, pay decrease, or earning more income. Also, the child’s needs may change and warrant more child support.
- Spousal support (alimony or maintenance): Likewise, a change that affects either former spouse’s financial situation could justify a modification of spousal support or alimony. This may include cohabitation with another person or remarriage.
- Orders of protection: A change in circumstances may also justify altering the terms of these orders. For instance, the parent or child who is protected under the Order may change their living situation or there could be additional instances of domestic violence.
Procedure for Modifying Orders and Agreements
Whether you reside in Garden City or elsewhere in New York, the steps that you must take to modify an Order or Agreement are essentially identical. They are:
- Consult with an experienced family law attorney: Discuss the details of your current Order or Agreement with an attorney who can assess whether your situation justifies modification. Your attorney can explain the evidence you will need, such as work records that show a decrease in earnings together with job search efforts.
- File a petition with the Family Court or a motion in Supreme Court and serve it: If you have experienced a material change in circumstances, your attorney can file a petition to modify in the appropriate court and serve it on the other party. The petition will state the legal basis for the modification and include supporting evidence.
- Negotiate with the opposing party: The opposing party may contest the claims made in the petition and/or the requested modification. However, if the party is open to it, your attorney can negotiate the matter with them either informally or through mediation.
- Litigate the matter in Court: If you and the opposing party do not agree on the modification, then you will need to present your evidence and arguments to a judge in Court. Your evidence, either affirming the need for a modification or challenging it, may include work records, bank statements, emails and text messages, third party witness statements, school records, medical records, and much more.
- Wait for the judge’s decision: Upon hearing the evidence and arguments from both sides, the judge will decide to grant or deny the modification in consideration of the child’s best interests and other legal standards. If the petition is granted then the judge will issue a new Order with terms that will be binding on both parties going forward. However, until a new Order is issued, the parties must follow the old one.
Contact Our Garden City, NY Family Law Modification Attorney
Regardless of which side of a modification case you are on, our legal team is ready to handle each step and make a compelling argument for your desired outcome. Reach out to the Saul Law Firm, LLP today. You can schedule a consultation with our office by calling or contacting us online.