Divorce is a significant life transition, but life continues to evolve even after the paperwork is finalized. As life changes, these adjustments can sometimes be in conflict with, or are no longer supported by the terms of your divorce agreement.
Whether due to shifts in your financial situation, changes in your child’s needs, or unforeseen situations, your original divorce agreement might not meet your family’s needs as it was originally intended.
Fortunately, your final divorce agreement isn’t set in stone. In many cases, it’s possible to modify your agreement to better align with your new circumstances.
What kind of changes can be made to my divorce agreement?
While divorce agreements are meant to be comprehensive, life can be unpredictable. There are some common reasons people might want to explore modifying a divorce agreement.
- Alimony adjustments. Income changes, like getting a promotion, losing a job, or going on disability, can impact the original agreement for alimony payments.
- Child support. Income variations, changes to the number of children the paying party supports, and changes in parenting time schedules, health insurance or work-related childcare costs can influence child support obligations.
- Parenting time. Schedule changes, work commitments, and the child’s evolving activities might require adjustments to parenting time schedules.
- Child custody. Changes to the child’s needs, parent relocation, and concerns for a child’s well-being can trigger a re-evaluation of custody arrangements.
- Health issues. Serious changes to either spouse’s health can impact their ability to fulfill the agreement’s obligations.
- Retirement. Changes to retirement benefits or pensions for either spouse can prompt a second look at property division.
- Domestic violence. If there are any assertions or events of domestic violence after the divorce is final, changes to custody, support, and other terms can be considered to protect the parties.
How do you know when you can make changes to your divorce agreement?
In New Jersey, there are two primary avenues for addressing changes to a divorce agreement: modification and enforcement.
Modification
Modification allows you to alter the terms of an existing divorce agreement due to the following circumstances:
- Material: the change of circumstance must be material, meaning it substantially affects either party’s ability to comply with the original agreement or for the well-being of a minor child. For instance, a small change in income would not be considered, but job loss or a major inheritance could be.
- Unforeseen: the change of circumstance must be unforeseen, meaning it could not have been reasonably anticipated when the original agreement was executed. If your ex was laid off due to major market changes, they might request modification of alimony payments to maintain financial stability. (There are exceptions to this rule. If you and your former spouse entered into an agreement which specified a certain benchmark for review or modification, then the event doesn’t need to be unforeseen, as it was contemplated by you both from the outset.)
- Permanent: the change must be permanent, meaning it is a long-term shift rather than a temporary fluctuation. Suppose you take on a new job where you’re expected to work four 10-hour shifts rather than five 8-hour shifts. This could require a modification of your parenting time plan.
Modification differs from post-judgment amendments, which are more narrow in scope and typically address clerical errors or clarify the existing language of an agreement, such as ambiguous terms or phrases that leave room for misinterpretation. These amendments are rare, and usually are done by consent of the parties.
It’s important to note that being displeased with or simply wanting a change to your current agreement is not enough to justify modification. It’s up to the party seeking the change to prove that the new circumstances are material, unforeseen, and permanent.
Enforcement
Enforcement is a legal action taken to ensure that one party upholds their obligations under the current divorce agreement.
This is reserved for situations such as a co-parent refusing to pay child support or alimony as stipulated—on time or at all. Under these circumstances, you could file a request for enforcement with the court.
Other common examples of when enforcement might occur include:
- Division of assets: this includes situations where the standing agreement outlined a timeframe or method for dividing assets, but it has not been upheld.
- Breaches of the terms of a parenting time schedule: if your co-parent is not meeting outline requirements for their parenting time, this can be a reason to seek enforcement.
- Failure to pay agreed upon share of expenses: depending on how your agreement was drafted, not meeting financial obligations laid out in your agreement (e.g., property tax, mortgage or rent, etc.) could lead to enforcement.
- Failure to abide by relocation restrictions: some agreements have detailed limitations to a custodial parent’s ability to relocate a minor child. If the parent violates these restrictions, court enforcement of the agreement might be necessary (but it might also call for modification of the original terms as well).
After considering the case, the court may rule to garnish wages or use other means to compel them to comply with the existing terms.
How can working with a divorce modification attorney de-stress the process?
Modifying a divorce agreement is a complex legal process, but an experienced family attorney can support you through it. Legal support extends beyond helping you check the boxes to get a modification or enforce your current agreement.
Here are some of the ways the right attorney can help de-stress things:
- Strategic guidance. Your attorney can assess your unique situation and develop a strategy to support your goals. They’ll advise you on the best course of action, whether that involves modification or requesting enforcement by the court.
- Evidence gathering. It’s a lot of work to get all your documents together, much less knowing exactly what evidence you need to produce to support your case best. An attorney should guide you through the process, helping identify the most relevant documents—tax returns, medical records, employment records, etc.—and getting them ready to present in your case.
- Negotiation and mediation. Many divorce modifications can be made without resorting to litigation. The right attorney walks you through alternatives like mediation to help you find resolution outside the courtroom.
- Representation. Should your case need to move into litigation, your lawyer will guide you through the complex legal procedures and handle your communications with the court. Most importantly, they’ll advocate for your best interests, ensuring your voice is heard throughout the process.
Whether you are considering modifying your current divorce agreement or want support enforcing its terms, our team of dedicated attorneys is here to help.
At Jacobs Berger, LLC, we pride ourselves on meeting clients where they are, truly listening to concerns and future goals, and working to find solutions that fit each client’s needs. Contact our team to coordinate your strategy planning session and find the best way forward.
