Whatever your family law issue may involve, circumstances will undoubtedly change over time. Such changes may involve loss of income or employment, relocation, remarriage, birth of additional children, and changes in the children’s needs. Whether you resolved your issues by agreement or court order, any changes that are made will need to be done formally through the appropriate modification action for child custody or support.

Modifying Agreements or Court Orders

Some issues can be modified under Georgia law. These include:

• Child Custody
• Parenting Time
• Child Support
• Payment of Children’s Expenses
• Spousal Support

While parties may vary from their court orders by agreement, any changes are not binding unless they are incorporated into a court order. Therefore, if a party wishes to have an enforceable change to a court order, it must be done through a modification. Hopefully, the parties can agree on modifying the terms of the initial court order. If they cannot, the modification will have to be resolved in court. The grounds to modify each provision is different and must be carefully weighed along with the facts of the case to determine the best course of action.

Other issues, such as division of assets, division of debts, certain post-majority child support obligations and certain spousal support obligations, may not be modifiable. They are usually final upon approval by the court in the initial order. If you have concerns about provisions of your current court order or agreement and whether they can be modified, you should meet with an attorney to determine if the provision is modifiable and if not, what your options are.

Grounds to Modify Prior Orders or Agreements

Depending on the provisions of your court order you want to modify, you must meet certain statutory requirements.

Modification of Child Custody

Legal and physical custody of a child can only be changed if there has been a “material change in circumstances affecting the welfare of the child.” Such changes may include, but are not limited to, a parent’s relocation or change in geographical proximity between houses, alcohol or substance abuse of a parent, a child struggling in the current custodial arrangement, a parent’s unwillingness to co-parent with the other parent, and a change in the child’s wishes, depending on the child’s age. If there has been a material change in circumstances, a parent may be able to successfully file a modification of child custody arrangement if he or she can show the court that the modification is in the child’s best interests.

Modification of Visitation

In contrast, the parenting time schedule may be modified if the court finds it is in the child’s best interest to do so, provided that such changes cannot be formally made within 2 years from the date of the last modification. The court can only circumvent the 2 year rule if there has been a material change in circumstances. A change in parenting time schedule may be a change of physical custody, and it is important to speak to a lawyer about the nuances of these two issues so you understand your possible options and best possible outcome. Further, because child custody cases rest solely with the discretion of the judge, it is incredibly important to be familiar with the judge assigned to your case and what issues are important to the judges in your county.

Modification of Spousal Support and Alimony

Spousal support, sometimes called “alimony,” can be in a variety of forms. It can be paid on a periodic (usually monthly) basis for a certain period of time. It can also be paid in lump-sum form or can be alimony in-kind. Sometimes alimony is modifiable, and sometimes it is not.

Where alimony is periodic, meaning, it is for a certain period of time but can terminate on certain conditions, it is usually modifiable unless the parties have agreed otherwise. Alimony that is lump-sum or in-kind is akin to property division and cannot be modified.

There are a number of situations that may result in modifying a spousal support order. This generally involves changes that affect the income or financial situation of one or both parties. Factors that could result in a post-judgment modification may include:

• The paying party suffering an involuntary loss of income or employment
• The alimony recipient finding a job or increasing income
• Remarriage or living as if you were married with a new partner
• Mutual agreement to modify alimony
• Disability
• Financial Emergency
• Additional support obligations to another ex-spouse or children

Alimony modifications can be challenging, especially where the recipient is seeking an increase in alimony payments. It is important to note the amount of alimony can be modified, but the term of alimony cannot be extended unless it is done by agreement. These cases can vary significantly depending on the jurisdiction and the assigned judge. It is important to meet with an attorney who is familiar with the judges in the applicable county to advise you on the process and your likelihood for success prior to filing a modification of alimony.

Modification of Child Support

Child support may be changed for a variety of reasons. Typically, child support is only modifiable if it has been 2 years since the date of the last modification. In such cases, child support is modifiable based on a change in income or financial circumstances of one or both parents or a change in the needs of the child. The court may circumvent the 2 year rule if the court finds there has been an involuntary loss of income or employment, or if custody is changed.

Factors that affect the modification of a child support order include, but are not limited to:

• A change in the custodial arrangement
• A change in income of either parent
• A change in expenses of the children
• A change in the number of children for whom support is owed
• A change in child support owed by either parent for another child
• A change in insurance coverage or medical expenses
• A change in work-related childcare costs
• Other extraordinary expenses such as educational costs, travel expenses, parenting time adjustments, and deviations based on low or high income.

Any changes to these factors could result in a change in the child support orders. It is very important to note that child support cannot be modified except by court order. In many cases, parents agree to adjust child support on their own and never formally modify the obligation with the court. In such cases, the original child support arrangement may still be pursued, regardless of any informal agreements to change it. If you are considering an adjustment to any child support obligation, it is important to speak with an attorney to guide you through the benefits and potential downfalls of that process.

Modification Family Law Cases

Modification actions can be more complicated than the initial divorce or other action. The strategy and preparation involved in modification actions should not be taken lightly. Over the last 10 years, we have gained significant experience in litigating modification actions in over 15 Georgia counties. Prior to filing a modification action, give us a call to discuss any strategic considerations, options for settlement, and changes for optimal outcome.

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