You might wonder if you have to live with the terms of your original divorce decree and parenting plan forever or if those terms can get modified. When life changes, sometimes the original terms of the divorce are neither practical nor fair.
Judges in Alabama do not want children to live in constant flux, so they prefer stability. As a result, Alabama law sets the standards quite high for modifying divorce papers. A family law attorney can review your case to determine how your divorce papers can be changed and initiate the process for you.
Reasons to Seek a Change of the Terms in Divorce Papers
Usually, you are bound by the terms of your divorce decree once it is final, except for custody, child support, and visitation matters. If the order is not yet final, your attorney might be able to file a motion to set aside the order, but you will have to show strong grounds and credible proof of those allegations.
Getting “buyer’s remorse” is not a valid reason for the court to change the terms of the agreement or judgment for things like property distribution. Typically, you will have to convince the judge that the other party engaged in fraud, collusion, or other misconduct to get you to agree to the original terms. Still, you would seek to change the terms through a different type of motion, not a motion to modify.
If spousal support is in question, you would generally file a motion to terminate, not a motion to modify. For example, let’s say that the original papers ordered you to pay monthly alimony to your former spouse, and after a few years, she got married again. You could file a motion to terminate the spousal support because alimony usually terminates upon remarriage.
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The Three-Part Test for Changing the Terms of Child Custody in Alabama
Alabama law is similar to the general rule across the United States for modifying a divorce decree. Although you can reach an agreement with your former spouse on the changed terms, those modifications will not be enforceable until a judge signs off on an order modifying the original decree.
You must be able to convince the judge that all three of these factors are true to support a modification of the divorce papers:
- Since the judge signed the divorce decree, there has been a substantial change in the parent’s or child’s circumstances.
- The proposed new terms are in the best interests of the child.
- The benefits of the proposed terms are significant enough to justify disrupting the current arrangement.
These required factors are not found in the Alabama statutes. Rather, the three elements are called the “McLendon standards,” named for the court case, Ex Parte McLendon, in which these three factors were created.
Changing the terms of the divorce papers, particularly the custody and visitation arrangements, is inherently disruptive to the child’s life. Requiring the benefits of the new terms to be substantial enough to offset the upheaval in the child’s life is a higher standard than merely being in the child’s best interest.
Reasons That Many Requests for Modification Get Denied
Alabama law is quite clear on the legal standards for justifying a modification of the terms of a divorce decree—particularly custody and visitation terms. Many requests by people to change the terms of their divorce decree get denied because the requesting party does not know or understand the three-part test. This often happens when people try to handle their modification without an attorney.
Common reasons that judges deny requests for modifications include:
There Has Not Been a Substantial Change in Circumstances Since the Entry Of the Divorce Decree
By itself, the passage of time does not justify modifying a divorce decree. Also, there might have been a change, but not material enough to justify taking up the court’s time.
A common example is when a parent wants to increase child support because the parent paying support got a raise or a better-paying job. When they do not have the advice of a lawyer, people often request an increase in child support when the higher earnings are not sufficient to meet the standard of a substantial change in circumstances.
Suppose the recalculation of child support using Rule 32 of the Alabama Rules of Judicial Administration—also called the Child-Support Guidelines—does not vary the current obligation by at least 10%. In that case, the judge has the discretion to deny the modification request. In fact, even if the recalculation would change the amount of child support by 10% or more, the judge can deny the request if applying the guidelines would be manifestly unjust or inequitable.
The Parent’s Focus Is on the Best Interest of the Parent, Not the Child
The legal standard is that the proposed change must be in the child’s best interest. If the parent only presents evidence of how the proposed change would benefit the parent and not the child, the judge is likely to deny the motion to modify the decree of dissolution.
The Benefits of the New Terms Are Not Significant Enough to Outweigh the Disruption to the Child
For example, say a parent proposes to move to another county to be closer to their place of work. If granted, this would require the child to change schools and move away from their neighborhood friends, with the only benefit being shaving 30 minutes off the parent’s commute.
Every family court case is different, and your request for modification might have additional factors that could persuade the judge to rule in your favor. These cases are fact-heavy and get decided on a case-by-case basis after undergoing the three-part test.
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The Domino Effect of Modifying a Divorce Decree
Requesting a change of custody or visitation terms can also impact the child support order. Changing the visitation schedule usually requires child support recalculation.
Let’s say you ask the judge for permission to move out of state with your child because of a job transfer. If you do not agree to the transfer, the company will terminate your position, and there is not a comparable position if you remain where you currently live because you have unique training and skills.
You might assume that child support would go up since the other parent would likely have less time with the child, thus having less credit for overnights with the child in their custody. In reality, one of these outcomes might happen instead:
- The child support could actually decrease if the judge assesses increased transportation costs to you as the one who requested the modification.
- The judge could award the summers and most of the school holidays to your former spouse, who is losing a significant amount of time and involvement in the child’s life if you move with the child.
- The judge might award custody to your former spouse out of concern that the proposed move would be too disruptive to the child’s life. The judge would allow you to move, but not your child.
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Discuss Changing Your Divorce Papers With Our Team Today
The Law Offices of Charlotte Christian and Associates can help you navigate through the process of modifying your divorce papers. Our divorce attorneys can review the terms of your divorce and explain what you may or may not modify, then help you file your request. You can call us today to get started.