Problem: You want to change your Judgment but don’t know how to.

Solution: Learn how to modify a Judgment in this chapter.

Modification — How to Change Your Judgment

The provisions of the Judgment as to custody/visitation and support can be modified (changed) later, if there is a change of circumstances, although spousal support can be explicitly made nonmodifiable. The mere passage of time or the fact that a party has changed their mind is not sufficient reason for the court to modify a Judgment. An order for support will be modified when the children's or party's needs have greatly changed, in some cases when the party's incomes have significantly changed, when expenses have increased, or upon other significant change of economic circumstances. Cus­tody/visitation can be changed, for example, if the children begin to have problems they did not previously exhibit such as truancy, school problems, or behavior problems, and often as the children get older, the noncustodial parent gets more time unless they’re in conflict with the children.

If the spousal support part of the Judgment is explicitly made non-modifiable (and you’d have to check with Attorney Yeamans to see if language you think provides for non-modifiability really does so), possibly spousal support cannot be changed. The property provisions of a Judgment can never, under any circumstances, be changed, unless the court explicitly reserved jurisdiction to make such changes. Property provisions can be enforced but not changed; if necessary, they might be made more detailed, but the division won’t be reversed. If spousal support is waived (given up) in an order, this will never be changed, if the language is strong enough to have waived the support.

Modification is obtained by means of a motion to modify, which will be set to be heard in the family law-and-motion department. The court will not look kindly on a motion to modify a judgment if the motion is made less than a year after the judgment was filed, except under unusual circumstances.

It is good practice to attach a copy of the order or Judgment you want to modify, and some courts require you to attach a copy of the prior order or Judgment.

Support will not be modified retroactively. That is, if the judge grants you a modification, the earliest it will be effective is the date on which you file the motion. If you have lost your job, file your motion as soon as possible.

Any motion pertaining to support always must be accompanied by a completed Income and Expense Declara­tion or Financial Statement (simplified). Remember, you must do a proof of service for both your ex-spouse and his/her attorney of record if the attorney did not file a formal withdrawal. Also, there are special rules for modifying support when the other party is on active military service.

The most important thing to remember is that in your Application and Declaration, you must state some change of circumstances, that is, how things are different now than they were at the time the court made its order or judgment.

When a motion to modify is made before the divorce is final, the papers may be served on the attorney if there is one or on the spouse if there is no attorney. After the divorce is final, the papers must be served on both your ex-spouse and on his/her attorney of record if that attorney has not filed a formal withdrawal from the case. Service may be made by mail, but your judge may prefer personal service for motions after judgment, so you may want to arrange personal service just to be safe.

You need two proofs of service-one for your ex and one for the attorney.

Your ex-spouse is entitled to sixteen court days' notice of the hearing (plus five extra calendar days if notice is mailed rather than personally delivered). To compute the number of calendar days, you count all days, including weekends and holidays. You may not count both the day of the hearing and the day on which you mail the documents.

You must attend the hearing and bring any and all witnesses and documents that you have to court with you. Often parties want to submit to the court letters or declarations written by others; this is hearsay and is not permitted. You have to have the witness in court with you, not just a letter or declaration. At any hearing regarding support, you must have paystubs and your most recent income tax returns. See elsewhere on this website for information on subpoenaing employment and banking information. The judge's job is to rule on evidence, not to take wild guesses. You have to supply the judge with the evidence that will permit him/her to make a rational decision in your case.

Just as with the Judgment, the court does not prepare the order regarding your motion to modify. Once the case has been heard, you yourself must prepare the Findings and Order After Hearing. You use only the parts that apply to your situation. It is very important that every time a matter is heard in the court, and the judge makes a decision or the parties make an agreement, a formal order is prepared. Without doing this, it is impossible to know exactly what are the obligations and rights of each party. The process for obtaining a signed Order After Hearing is discussed elsewhere on this website.

If a hearing with evidence is required as to some or all issues, the court's decision will be announced either verbally at the time of the hearing or later in writing (if the matter is "taken under submission" to be decided later). If support is modified, you should be careful to fill in the part of form FL-342 that begins, "THE COURT USED THE FOLLOWING INFORMATION ..." The purpose of this is to clearly set forth the facts that the court found this time so that if you need another modification in the future, that motion will be made much simpler because you will only have to prove what are the facts then, not what the court found them to be now. To prove a change of circumstances, you must prove both what the facts were earlier and what they have changed to. If you fill out the Order After Hearing form and attachments in full detail as to the information the court used or attach a computer printout, for any future modification you will have to prove only what the new facts are as the old facts will have been clearly set forth in the order.