In civil cases, including family law, there is a time for parties to negotiate between themselves and a time when the judge must intervene. Modification actions, be they for child support, visitation, or spousal support, require both. Even if the parents are divorced or are never married, a family is a family, and judges expect families to work out problems on their own without always resorting to court action.
The problem is that many parents take this directive too far, and when family law orders need to be modified, the parents rely on "side agreements." These agreements are often unenforceable in any court; for example, there is no mutuality (the parties agreed on the same terms at the same time) if the agreement is really just an email or text message string. Moreover, these agreements are always unenforceable in family court, since only a judge can modify judicial orders.
So, as a rule of thumb, most family law orders need to be legally modified every three or four years, so these decrees keep up with life changes. There is plenty of room for negotiation as well, because many modification actions essentially involve the judge signing a modification that the parties have already agreed on. Judges routinely do this, if the modification is in the best interests of the children.
Custody and Visitation Modification
Especially with regard to mid-week and split holiday visitation, child custody orders rely on timing, and a move across town or a job change that requires substantially more hours are often sufficient to upset the delicate balance. Conversely, a move that brings the parents closer or a new job that allows a parent to telecommute can be sufficient cause to increase visitation.
Both these changes arguably constitute changed circumstances that make a modification "necessary or proper," according to Section 3022 of the Family Code. The requested change must also be in the best interests of the children. In addition to job change or relocation, some other changed circumstances include:
- Removal of Disability: If a parent overcomes a substance abuse problem or successfully completes court-ordered anger management counselling, these changes may be grounds for modification.
- Onset of Disability: Conversely, a serious illness diagnosis or a marriage to a new partner with a history of domestic abuse could also trigger a necessary and proper adjustment.
- Child's Preference: Under the new Section 3042, children of any age can express a preference to live with Mother or Father; a presumption applies if the children are older than 14.
In any modification proceeding, only events that transpired between the prior order and the current date are legally relevant, in most cases.
Child Support Modification
Similarly, changed financial circumstances can justify a modified child support order; different income and/or different expenses are the most commonly-cited changed circumstances.
Income changes are typically objective, although this is not always the case. In many situations, a simple comparison of income and tax documents tells the entire story. However, self-employed parents typically have no paystubs or W-2s to compare. Even if there are such documents, employees can adjust their tax withholding levels to artificially deflate their income and people with multiple business interests may be concealing income by channeling it to other legal entities. Furthermore, if a party requests a reduction or termination based on underemployment or under-employment, the change must have occurred in good faith.
Infants and preschoolers are usually expensive to raise because of child care costs, and older teenagers are also expensive because they are of driving age and often want to participate in expensive extracurricular activities. Moreover, many children have special educational, physical, or emotional needs, and health insurance does not always cover all these needs.
Because of reform efforts, lifetime and long-term alimony payments are quickly becoming a thing of the past in many states, and that reform wave has hit California courts. Gavron Warnings are now commonplace in California divorce and modification orders. Based on a 1988 case from the Second Appeals District, Gavron Warnings state that obligee spouses (persons who receive spousal support) are expected to become self-sufficient as quickly as possible. In other words, instead of a way to permanently equalize the standard of living between the ex-spouses, alimony is now a means to an end.
Most modifications actions are based on income reductions. In many situations, obligor spouses (persons who pay spousal support) hesitate to file, because they feel the income loss is only temporary or they do not feel as though they are in a position to file a case. But alimony reductions are normally not retroactive, so every month that goes by is a month that obligors may be paying too much alimony. Modifications are based on the best interests of the children and legitimate changes in circumstances.