Modifications and Post Divorce Issues
Sometimes after the terms of your divorce have been finalized, your life circumstances change—perhaps through a change of employment or a move. If you have experienced a substantial change in circumstances, you may be able to modify your original support order, custody order or parenting time schedule.
Modifying Parenting Time
A party seeking to modify the parenting time they have with their children, as granted in a divorce judgment, must prove to the court that a parenting time modification is in the best interest of the children. Generally, in making its decision on whether to modify parenting time, the court will look at the specific facts of each case, as well as case law regarding parenting time modification.
A modification of custody first requires a court finding that there has been a substantial change in circumstances in the parenting arrangement since the original custody determination. The court must also find that a modification of the custodial situation is in the best interest of the children.
Factors that must be considered by the court in determining the best interest of the children are explicitly stated in the Oregon Revised Statutes. However, there is also a significant body of case law pertaining to custody modification that the court may also consider when making a modification determination.
Modification of sole custody from one parent to another is generally based upon health, safety and welfare issues pertaining to the children, or if the court finds that the child is in danger while in the custody of the parent who was granted custody in the original judgment. There is much case law regarding circumstances under which sole custody will be modified, and the list of factors is too large to be listed here. The court examines the unique facts of each case before a modification of custody is granted or denied.
If parties have joint custody and they find it impossible to agree on decision-making or other issues pertaining to the children, either party may seek a modification of custody granting him or her sole custody of the children. In Oregon, the fact that at least one parent is unwilling to, or incapable of, continuing the joint custodial situation constitutes a substantial change of circumstances, potentially warranting a modification of custody.
It is important to note that as children grow older, their choices regarding which parent the child prefers to live with will be given more weight by the Court.
A change in the income of either parent or the child, emancipation of a child or unanticipated mental or physical incapacitation of a child are potential grounds for a modification of child support. In Oregon, child support is calculated using overnight parenting time (not the number of daytime hours a parent has with the children), so a substantial change in the number of overnights spent with one parent may justify a modification of child support. The burden of proof lies with the parent seeking the modification, who must prove that a change in circumstances has occurred, affecting the child support calculation.
An unanticipated substantial change in circumstances may be grounds for an increase, decrease or termination of spousal support. Again, it is up to the party seeking the modification to prove that the requisite change in circumstances has occurred.
A modification of spousal support is at the discretion of the court, which will look at the original Judgment of Dissolution to see which type of spousal support was awarded. In Oregon there are three types: transitional, compensatory and maintenance, and each has a slightly different standard for modification. The court also considers the duration of the support and the specific purpose of the support. Finally, the court will consider the unique facts of each case, as well as statutory factors and the large body of case law that exists regarding spousal support modification.
Here is a typical situation in which a modification of spousal support is sought: one party, the obligor, is ordered to pay a certain sum of spousal support each month to his or her former spouse, the obligee. After the Judgment of Dissolution is finalized, the obligor experiences a loss of income that the obligor feels has been a substantial change in circumstances. In this situation, the obligor may be granted a modification of the original spousal support order, so that the amount of support paid reflects his or her new income.
The general rule is that a property award/distribution pursuant to a divorce judgment is not modifiable. One exception to this rule is when there has been a mistake, either clerical or on the part of the parties, regarding some aspect of the property award. Another example is when the court discovers that one spouse has concealed assets to keep them from being properly assessed during the divorce proceeding.
At Stahancyk, Kent & Hook, P.C., we can assist you in making informed choices when facing some of the most important decisions in your and your children's lives. Our attorneys can help you determine a plan to successfully navigate the issues facing you. Click here for new client information.
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