In this article, you will learn about:
- When you can seek a modification of custody or child support.
- Why having a trusted family law attorney is important for your case.
- How family court orders may be affected by changes of circumstance.
What Situations Can Cause A Final Divorce Decree To Be Modified In Maryland?
Typically speaking, child custody, child support and alimony are common components of a divorce decree which can be subsequently modified. To modify one of these orders in a divorce decree, you generally need to show a material change in circumstances.
To understand what a material change in circumstances may entail, consider a custody case, for example: Suppose the parents receive a Court Order at the conclusion of their case stating that they are to share 50-50 physical custody of their child.
After a year, one parent decides that they will move from Maryland to California. Suddenly, that 50-50 parenting schedule is not viable anymore – because it’s logistically impossible and unstable for a child to alternate weeks with their parents when they live across the country. This situation would typically constitute a material change in circumstances and require that the Court modify the custody order to reflect the new situation.
It’s important to note that there is no specific or statutory list of events that do or do not qualify as a material change in circumstances. The facts of each case are different and the Court must be convinced that a material change has occurred before it will modify a previous Order. However, unless there has been a significant change (such as a cross-country move), modification of a Court Order typically isn’t viable within the first six months to one year after the Court Order. Generally speaking, this is because not enough time has passed to show the Court that there’s been enough development in the circumstances to alter an existing order. Even when one parent is being difficult or not following the Court Order, this is often not enough to meet the burden of showing material change and circumstance.
When a Court is considering whether or not to modify a custody Order, there is typically a two-step process:
- First, the Court looks to see if there has been a material change in circumstances. If the Court does not find a material change in circumstances, the Court will not modify the Order.
- Second, if and only if the Court determines that a material change in circumstances has occurred, the Court will assess what custody schedule is in the child’s best interest in light of the new circumstances.
The analysis for a modification of child support is similar to that for a modification of custody. In a child support modification case, the Court will first examine whether there has been a material change in circumstances. Most commonly, in these cases a material change in circumstances can occur when one party’s income significantly increases or decreases, but this is not the only scenario. If the Court finds a material change in circumstances warranting a modification of child support, the Court will re-calculate child support under the Maryland Child Support Guidelines.
Similarly, when a party seeks to modify alimony, the Court will first require a material change in circumstances. In the context of alimony, this often occurs when one party’s financial situation changes significantly. If the Court finds that there has been a material change, the Court will review the existing alimony obligation in light of the new circumstances to determine whether alimony is still appropriate and if so, what amount and duration the alimony should continue for.
What Is The Process To Petition The Court For A Modification Of A Custody Or Support Order?
Petitioning the court to modify a family court order is much the same as starting an original case – you’ll need to begin by filing a Complaint for Modification. If you’re trying to convince the court that a modification needs to occur, the first thing the court wants to know is: What’s changed? Is there a good enough reason to modify it? So, it’s crucial that you are able to articulate in the Complaint the changes that have occurred to necessitate the court modifying an Order.
In any case, after a Complaint has been filed, the court will typically issue a Writ of Summons. Just as with the beginning of many of these cases, this Writ will then need to be served unto the other party – after which, the litigation process will continue on.
Understanding the legal procedures and law which guide the Court in deciding cases is critical to achieving a successful outcome. Oftentimes, the “do it yourself” approach to litigation can lead to many pitfalls and result in a less favorable outcome than could be achieved with the assistance of an attorney. This is particularly true for modification cases or other complex standards, where the applicable law has many components and factors which must be considered. It is always best to have a trusted attorney representing you in your case to ensure that these issues are handled correctly.
My Ex-Spouse Or Partner Has Filed A Petition To Modify Custody And Visitation. Can I Do Anything About It?
There are many options available to those dealing with an ex-spouse or partner who is petitioning for a modification of custody or visitation.
Once you are served with a Complaint, you should immediately consult with an attorney about your options and what the other party is trying to do. Then, procedurally, you will need to file a response – what’s called an Answer to the Complaint – within 30 days if you are served in the State of Maryland. If you don’t respond by filing an Answer within appropriate time frame, the Court can enter an Order of Default.
If you completely fail to respond to the Complaint, the other party may be able to get an uncontested hearing and ask the Court to grant them all relief they are seeking without any opposition or the Court hearing your side of the case. This is why it is vitally important to seek the assistance of an attorney and respond in a timely fashion. If you file a timely and complete response with the Court, the case will proceed in its ordinary course from that point.
Why Would Someone Petition For A Modification Of A Custody Or Support Order?
There are many different reasons why a parent may ask the Court to modify custody and/or child support. For modifications of custody, situations such as one parent moving further or closer away to the other parent, changes in the relationship between the child and the parent or other significant changes may be considered. For example, suppose a custody Order provides that one parent has overnight access on a weekly basis but for whatever reason, that parent fails to exercise such access and only sees the child once every few months. As unfortunate as that is, this may be a basis for a modification of the custody schedule since the terms of the existing Court Order no longer align with the reality of how often each parent sees the child.
For modifications of child support, such cases typically revolve around increases or decreases in one or both of the parties’ incomes. For example, suppose that when the initial child support Order was entered, one parent made $5,000 per month while the other parent made $2,000 per month. After the child support Order was put into effect, the parent making $5,000 per month loses their job and now makes $2,500 a month. Since that parent experienced a substantial decrease in income, it would significantly impact the child support that that parent would be obligated to pay. Conversely, if a parent making $5,000 per month got a new job or received a promotion and that parent now makes $8,000 per month, this would also drastically effect the amount of recommended child support under the Maryland Child Support Guidelines.
Notably, not all changes in income will warrant a modification of child support. For instance, a case where one parent who experiences a 5% change in income would likely not meet the material change in circumstances element required for a modification. Alternatively, if one parent experiences a 50% change in income, this would almost certainly demonstrate a material change in circumstances.
There are other circumstances which may warrant a modification of child support as well, including an increase or decrease in the number of overnights that the child spends with each parent. For example, suppose a custody Order provides parents with 50-50 custody and child support was originally calculated based on each parent having an equal number of overnights. Then, for whatever reason, one parent only sees the child once per month or on a limited basis – this would place an increased financial burden on the custodial parent. Along with asking the Court to modify the custody schedule that is in place, the custodial parent might also ask the Court to modify their child support arrangement to accommodate a greater financial need.
As for modifications of alimony, a trigger for modification often is caused when one party retires. This is especially true if the retiring party experiences a substantial reduction in income as a result of their retirement. Depending on the change in income relative to what that party’s income was at the time the Court Order was entered, the retiring party could ask the Court to modify the alimony based on their new level of income.
For more information on Modification Of Family Court Orders In Maryland, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (410) 650-4242 today.