Ask Us Your Questions About Modifying Existing Court Orders
If you have a court order for spousal support, child custody and parenting time, or child support, you might be wondering whether you can change it at some point. You can – and we can help you. Our award-winning attorneys at Nelson Kirkman serve clients throughout Orange County who need modifications for family court orders.
Can the court modify orders related to child and spousal support?
Yes, the court may modify orders on child support, child custody, and spousal support after judgment. Modifying such orders typically requires a significant change of circumstances, but there are exceptions to that rule. Modifications are brought to court by filing a Request For Order (RFO). The divorce court has discretion to modify orders unless the parties have agreed to make the order non-modifiable, and the court will not observe non-modifiability for several types of orders.
Will the court allow parties to contract non-modifiable child custody and child support orders?
The divorce court will not consider a non-modifiable order related to child custody or support. In fact, such agreements are viewed by the court as contrary to public policy. In the eyes of the court, all child custody and support orders are modifiable, even those that claim to be non-modifiable. Temporary child custody orders are rarely modified unless there is an issue with the child’s safety.
What will cause the court to modify a custody order?
The court will modify a final child custody order if the parent attempting to modify the order can show a “significant change in circumstances.” The court carefully examines such claims to determine the true impact on the child’s health and welfare, along with any educational concerns. The court has wide discretion to interpret changes as being significant or not.
When will the court use a best interests test as opposed to a change of circumstances test for child custody orders?
The “best interests” test is utilized when a child custody order is not specifically a final order. This is a lower threshold than the “change of circumstances” test used with final orders. For final orders, the court will only consider if there has been a significant change of circumstances since the final order was established. In such a case, if the court finds there is not a significant change in circumstances, it cannot modify an order even if it believes it would be beneficial for the child.
Can the family law court change a child’s residential arrangement if a change of circumstances doesn’t exist?
It is very rare for a family law judge to grant a relocation order if a substantial change in circumstances is not present.
Can one parent relocate a child without a court order?
If both parents agree to the relocation, they can submit their agreement to the family law court. Judges will usually grant petitions in which both parents agree to allow one parent to relocate with the child.
What factors will the court look at when considering the relocation of a child?
The court carefully considers multiple factors before modifying a custody order to allow the child to be relocated. The court will examine the willingness of each party to put the child’s interests first, the reasons for the move, the extent of shared custody under the current order, the age of the child, their relationship with each parent, and the ability of the parents to maintain whatever level of stability exists in the child’s life.
Can a party agree to a certain level of child support and then immediately seek a modification of the order?
Yes, all child support orders are modifiable by the court if the circumstances indicate that a change is appropriate, even if the parties agreed to a certain level of child support the previous week. Even if the parties make an agreement that they claim is non-modifiable, the court can still modify it. If the agreed-upon child support is below the guideline child support number, the level of support can be raised by the court to the guideline level without evidence of a change in circumstances.
What goes into the guideline child support calculation and what is the ‘high-earner’ exception?
Guideline child support is calculated by software such as DissoMaster or Xspouse based on such factors as the income of each parent, the timeshare of custody between the parents, and any deductions. The divorce court must find the guideline level of child support but may depart from that guideline with “good cause.” If the court finds the guideline level unjust, it will lower the level of support from the guideline level. The court has wide discretion in determining high-earner status for a payer-parent. The income level that results in high earner status varies from county to county and even from courtroom to courtroom. The “good cause” that will result in the court deviating from guideline child support may involve a child’s special needs, a parent not paying their share of expenses while they have custody, or other circumstances in which failing to change the level of support would be unjust for the child’s welfare.
Can the court modify a non-modifiable order for spousal support?
No, the court cannot modify an order for spousal support that clearly indicates it is non-modifiable. The divorce court will not make non-modifiable orders, but the two parties may agree to one between themselves. In such cases, the court loses the ability to change the order, no matter how drastically circumstances change in the future.
On what basis will a court modify the spousal support order?
The basis for all changes to spousal support is a “change of circumstances.” This test applies to both orders and agreements between the parties. The circumstances in question, as related to spousal support, are the needs of each party and their respective income levels. The ability to earn, as opposed to actual earnings, may become an issue in some cases. If a payer loses their job, and after a good faith effort to find a new job accepts a lower-paying position, it may be a change in circumstances justifying a modification. On the other hand, an increase in earnings for the payer does not justify a modification on its own. A modification would be justified in this case if the payee proves that their needs were not satisfied by the current level of support. In that case, a modification may be appropriate to raise the payee’s standard of living to an appropriate level (IRMO Hopwood and IRMO Hoffmeister). Notably, the marital standard of living becomes less important to a modification over time (IRMO Rising).
What factors impact the length of time spousal support is payable?
The basis for all changes to spousal support is a “change of circumstances.” This test applies to both orders and agreements between the parties. The circumstances in question, as related to spousal support, are the needs of each party and their respective income levels. The ability to earn, as opposed to actual earnings, may become an issue in some cases. If a payer loses their job, and after a good faith effort to find a new job accepts a lower-paying position, it may be a change in circumstances justifying a modification. On the other hand, an increase in earnings for the payer does not justify a modification on its own. A modification would be justified in this case if the payee proves that their needs were not satisfied by the current level of support. In that case, a modification may be appropriate to raise the payee’s standard of living to an appropriate level (IRMO Hopwood and IRMO Hoffmeister). Notably, the marital standard of living becomes less important to a modification over time (IRMO Rising).
If the supported spouse is cohabiting, can spousal support be terminated or reduced?
The court holds the presumption (which is rebuttable) that a supported party has a reduced need for support when they are cohabiting with a third party. Cohabitation is not limited to remarriage, and the burden is on the supported party to show that cohabiting doesn’t lower their need for support.
Can spousal support be retroactively modified?
No, a spousal support order cannot be modified to a date before the Request For Order (RFO) is filed with the court.
Do You Want To Modify An Order? Ask Us How.
You can contact Nelson Kirkman to learn more about modifying a custody or support order. Our team of family law attorneys can explain the process in-depth and help you. Please set up a consultation by calling our Newport Beach office at 949-430-6952 or by using our online contact form.