The orders that are typically modified are child and spousal support as well as child custody. Less frequently, attorney fees may be modified.
The court can modify orders so long as it retains jurisdiction to do so and there has not been a final judgment. However, child support orders may be modified at any time the court considers necessary. Fam. Code section 3651(a). The requirement that a material change of circumstances has occurred must first be met before the court will revisit a valid child support order. Marriage of Stanton 190 CA4th 547, 553. The requirement of material change does not apply if the parties originally stipulated to a child support order that was set below the formula specified by law. Fam. Code section 4065(d).
Although Family Code section 3651(a) states that support orders may be modified or terminated at any time the court deems to be necessary, the parties can enter into an agreement that spousal support is nonmodifiable. This type of agreement is authorized by the same code in subsection (d). spousal support may not be modified when it was not originally granted and if the court’s jurisdiction was not reserved over the issue.
Custody and visitation orders may be changed. If there are temporary orders only, no change of circumstances needs to be proved in order to get change. Practically speaking, however, the court is unlikely to change visitation orders it made on a temporary basis without showing some type of change makes it necessary.
If the change sought does not change type of custody (sole v. joint for example) and the change sought is only for the schedule to change, there is no need to prove a change of circumstances in order to obtain the modification.
Attorney fees and costs may be adjusted before the final order is entered. This is not unusual since the attorney fees will become clearer once the work is done so that the order made while the case is pending may no longer reflect the actual work that was done. Once the final order is in place, the attorney fees and costs cannot be changed post judgment.
Before deciding to file a petition to modify a support order, it would be wise to first know what the likely outcome would be. When consulting a family law attorney and providing the current financial information, a calculation can be made to determine how the court will likely rule. It is possible that the respondent will attempt to argue a change in circumstances in their favor which could result in more or less custody time which would rebalance the formula used to the determine the support child support order, for example.
If the party having to respond to the petition for modification can make the case that he or she cannot afford to pay their own attorney fees, he or she may seek to have their own attorney fees be paid for by the petitioner. In addition, whatever level of cooperation there may exist between the parties, filing a petition to modify the orders may sour the relationship.
A complete evaluation of the status of the case should be made to anticipate how the respondent is likely to react. If arrears are owed for example, the respondent may seek to collect on those arrears. One should always consider the law of unintended consequences.
Someone who already is in contempt for nonpayment of child support should not seek to modify child support until the contempt proceedings have ended. This prohibition is discussed in Schubert v. Sup. Ct. 109 CA 633, 634-635. If the county is providing aid to one of the parents, the court will not be able to modify child support orders unless the county has been given written notice of the modification hearing. See Marriage of Mena 212 CA3d 12, 18.
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