Modification
Orders, like cars, can be modified to work better or worse for you. Child support, spousal maintenance, parenting time, decision-making, custody: these are a few of the orders that may be modified but certain requirements must be met.
Regarding the modification of child support and/or spousal maintenance, consider the following words of Shakespeare written over four centuries ago:
This world is not for aye, nor ‘tis
not strange
That even our loves should with
Our fortunes change.
Player King in Hamlet, 3.2.200-1
Fortunes or incomes do change and when they do, a modification may be in order.
However, do not believe that only because your ex’s income has potentially increased that you will receive an increase of child support and/or spousal maintenance. Conversely, do not believe that only because your income has decreased that you will receive a decrease of child support and/or spousal maintenance.
There are certain factors that must be satisfied if you are seeking to modify child support and/or spousal maintenance. C.R.S. § 14-10-122 applies here.
First, it is important to note that any modification of child support and/or spousal maintenance that occurs will only occur AFTER you file for modification, not before:
(1) (a) Except as otherwise provided in sections 14-10-112 (6)and 14-10-115 (11)(c), the provisions of any decree respecting maintenance may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unfair, and, except as otherwise provided in subsection (5) of this section, the provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification and only upon a showing of changed circumstances that are substantial and continuing or on the ground that the order does not contain a provision regarding medical support, such as insurance coverage, payment for medical insurance deductibles and co-payments, or un-reimbursed medical expenses. The provisions as to property disposition may not be revoked or modified unless the court finds the existence of conditions that justify the reopening of a judgment.
It is imperative then to act quickly so as to stem the proverbial bleeding or to cease overpaying or to correct payments if your ex is underpaying.
Further, the changed circumstances, e.g. the increase or decrease in income, must be “substantial and continuing.” If it is only a temporary change in income, then it will not pass the test set forth above.
Now, if you are seeking to modify spousal maintenance, certain circumstances may have arisen that will most likely result in a modification:
(2) (a) Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the earlier of:
(I) The death of either party;
(II) The end of the maintenance term, unless a motion for modification is filed prior to the expiration of the term;
(III) The remarriage of or the establishment of a civil union by the party receiving maintenance; or
(IV) A court order terminating maintenance.
Regarding modification of parenting time, C.R.S. § 14-10-129 applies.
Now he weighs time
Even to the utmost grain.
Exeter in Henry V, 2.4.137-8
Typically, whenever a party brings forth a modification of parenting time, the court considers the best interests of the child:
(1) (a) (I) Except as otherwise provided in subparagraph (I) of paragraph (b) of this subsection (1), the court may make or modify an order granting or denying parenting time rights whenever such order or modification would serve the best interests of the child.
However, a party may seek to restrict the parenting time of another party if the following is satisfied:
(b) (I) The court shall not restrict a parent’s parenting time rights unless it finds that the parenting time would endanger the child’s physical health or significantly impair the child’s emotional development. In addition to a finding that parenting time would endanger the child’s physical health or significantly impair the child’s emotional development, in any order imposing or continuing a parenting time restriction, the court shall enumerate the specific factual findings supporting the restriction.
Further, if a party seeks to restrict another party’s parenting time, a hearing must be held no later than fourteen days after the day of the filing of the motion:
(4) A motion to restrict parenting time or parental contact with a parent which alleges that the child is in imminent physical or emotional danger due to the parenting time or contact by the parent shall be heard and ruled upon by the court not later than fourteen days after the day of the filing of the motion. Any parenting time which occurs during such fourteen-day period after the filing of such a motion shall be supervised by an unrelated third party deemed suitable by the court or by a licensed mental health professional, as defined in section 14-10-127 (1)(b). This subsection (4) shall not apply to any motion which is filed pursuant to subsection (3) of this section.
Sometimes a party desires to modify parenting time because of a geographical relocation. Under such circumstances, the Court considers the best interests of the child or children as well as other factors including:
(2)(c)(I) The reasons why the party wishes to relocate with the child;
(II) The reasons why the opposing party is objecting to the proposed relocation;
(III) The history and quality of each party’s relationship with the child since any previous parenting time order;
(IV) The educational opportunities for the child at the existing location and at the proposed new location;
(V) The presence or absence of extended family at the existing location and at the proposed new location;
(VI) Any advantages of the child remaining with the primary caregiver;
(VII) The anticipated impact of the move on the child;
(VIII) Whether the court will be able to fashion a reasonable parenting time schedule if the change requested is permitted; and
(IX) Any other relevant factors bearing on the best interests of the child;
Regarding the modification of decision-making or custody, C.R.S. § 14-10-131 is considered.
Multitudes, multitudes in the valley of decision: for the day of the Lord is near in the valley of decision.
-Joel 3:14 of the King James Bible
Decision-making and custody may be modified if the best interests of the child or children will be served and if other factors are met:
(2) The court shall not modify a custody decree or a decree allocating decision-making responsibility unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or the child’s custodian or party to whom decision-making responsibility was allocated and that the modification is necessary to serve the best interests of the child.
Decision-making can only be modified if one or more of the following is satisfied:
(2)(a) The parties agree to the modification;
(b) The child has been integrated into the family of the petitioner with the consent of the other party and such situation warrants a modification of the allocation of decision-making responsibilities;
(b.5) There has been a modification in the parenting time order pursuant to section 14-10-129, that warrants a modification of the allocation of decision-making responsibilities;
(b.7) A party has consistently consented to the other party making individual decisions for the child which decisions the party was to make individually or the parties were to make mutually; or
(c) The retention of the allocation of decision-making responsibility would endanger the child’s physical health or significantly impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.
As you can see, different factors apply to different modifications. But, remember, every modification turns on the facts and the situations of the parties. Child support. Spousal maintenance. Parenting time. Decision-making. Custody. These modifications and more can be difficult to deal with on one’s own.
Call us today for help in preparing for and navigating through your modification. Give us a call. We can help.