Modification of Family Law Orders, Decrees, and Judgments

When potential clients contact Wilkinson & Finkbeiner law offices, may times they want to know whether a current judgment or decree for a family law matter can be modified. We tell the potential client that it depends on the issue involved and the terms of the order or judgment. Our divorce and family law experts have litigated countless hearings involving post-judgment modification of orders relating to every issue imaginable stemming from divorce, legal separation, and paternity. We have guided hundreds of clients through the often difficult process of modifying a judgment, or defending a modification filing made by the opposing party. We are experts at strategically determining the proper course of action when Requests for Orders (RFOs) are filed to modify orders. Contact our office for a free, private consultation.

“What type of orders can be modified in family law cases?”

There are many kinds of judgments, decrees and orders that are modifiable in family law. Decrees and judgments entered in divorce, legal separation, nullity and paternity cases may often be modified in the future after the entry of the judgment. The types of orders that can always be modified include child custody and child support. These types of orders can always be modified because parents are not allowed to agree to “non-modifiable” orders for custody and child support under California law. The types of judgments and orders that can possibly be modified include spousal support and certain provisions where the court specifically “reserved jurisdiction” to make further orders or modify. Usually the parties’ divorce judgment or other order will specify whether the terms of that provision allow for modification. The types of judgments that cannot be modified include final determinations or agreements for property division.

“How does a family law attorney determine whether an order can be modified?”

There are two steps in the analysis to determine whether an order or decree from the family court in Riverside County can be modified, which are:

Whether the issue is statutorily modifiable: There are only certain types of orders that are modifiable under the law. These include child custody orders, visitation judgments, child support, and usually spousal support or alimony. Unless a divorce or legal separation states differently, judgments for the division of community property is not modifiable (and it would be extremely rare for such a modifiable property judgment to exist.)
Whether the terms of judgment allow for modification: The terms of the decree or order may specify whether it is allowed to be modifiable. For example, some parties agree to “non-modifiable” alimony orders that cannot be modified in the future even if a change of circumstances exists.

“What if there was a missing or “omitted” asset in our divorce – can we modify the judgment?”

There is no need to modify a divorce or legal separation judgment for the reason that an asset or debt was “omitted” from the judgment. In these situations, the law (specifically Family Code 2556) allows the family law judge in Riverside County to adjudicate (i.e. make orders relating to) the asset omitted from the original judgment. If the situation occurs wherein an asset is not included in the judgment, the procedure to ensure the court makes an order regarding the asset is to file a motion, called a Request for Order in Riverside County, in the court where the divorce was entered (for example, if a party lives in Temecula their case file will probably be in Hemet, CA.)

“What is the legal basis needed to modify a divorce or other family law order?”

The legal basis that is necessary to modify an order is usually a change of circumstance. There are varying degrees of the change of circumstance required to allow the court to modify. For example after a “final adjudication” of child custody and visitation orders, such as after a child custody trial, the party wishing to modify the orders must show that significantly changed circumstances have occurred (see the Montenegro case.) In most other cases, simply changed circumstances will do. Some of the commonly used “changes of circumstances” include the following:

Child custody: Where a child has moved onto a new school because they are year older (perhaps closer to the non-custodial parent.)
Child support: Where either party earns more or less money than they did at the time the order was entered.
Spousal support: Where the needs of the supported party have increased.
Child custody: Where a parent wishes to move out of Riverside County.
Child support: Where a parent has a job contacts order that they are supposed to be abiding by and they are not, the court can impute income.
Spousal support: Where a support obligor’s income has decreased.

In all civil cases, including all family law cases (excluding contempt matters), the standard of evidence is by the preponderance of the evidence. This means that if it is “more likely than not” that the court should order a certain way, then it may do so.

“Do I need legal representation to modify a family court order?”

It is certainly wise to retain an expert in family law to help with your modification motion or if you are responding to such a motion. There are innumerable nuances that will apply to modification cases and having the help of an attorney that has handled these cases in the past extensively. We provide a free, private consultation to discuss your options with you. Call or email our office today.