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Many of us have experienced significant life changes over the past year, particularly as the pandemic affected everything from health to employment to schooling. If you have divorce or custody orders that have been substantially impacted by life changes since they were first entered, it may be worth evaluating if you should seek to change the orders. In Connecticut, this change is accomplished with a motion for modification, which is one of the most common post-judgment divorce and custody motions.
 
What is a post-judgment motion for modification? At the conclusion of a divorce or custody case, whether resolved by agreement or trial, the court enters a judgment (sometimes referred to as the “decree”) that often includes orders related to child support, alimony, parenting, and the distribution of property. These orders are based on the circumstances as they existed at that time, but family courts understand that these circumstances may change in the months and years that follow. For this reason, after judgment, many divorce and custody orders remain open to adjustment by filing a post-judgment motion for modification.
 
What orders can be modified after judgment? Current orders related to children, such as custody, visitation, parenting, and child support, almost always remain open to modification after judgment. Alimony orders are usually subject to modification as well, unless the judgment expressly states that the alimony order is not modifiable. However, if you did not obtain alimony orders at the time of divorce, then alimony cannot be obtained after divorce, even with a motion for modification.
 
Property orders, on the other hand, are not modifiable after judgment. Property orders include the division of marital assets, such as real estate, bank accounts, retirement accounts, vehicles, and personal property. Property orders are set in stone at the time of divorce, even when circumstances change after divorce, except in rare and exceptional instances (outside the scope of a motion for modification) where a court may open the judgment and readdress the orders.
 
What are proper grounds for seeking modification? Dissatisfaction with the current orders is not enough on its own to obtain modification. Courts will only consider granting a modification when the circumstances of the parties or their children have changed enough since the entry of the prior orders that the modification is warranted. While a number of laws intersect to influence the court’s decision, modifications are primarily governed by Connecticut General Statutes §§ 46b-56 (custody and parenting) and 46b-86 (child support and alimony).
 
For alimony and child support, the current order may be increased, decreased, or eliminated by the court upon a showing of a “substantial change in the circumstances of either party.” Potential examples of substantial changes could include losing or gaining employment, large increases or decreases in income, or other significant life events impacting a party’s finances (such as a disability or medical issue that greatly increases expenses).
 
For child support, which is usually based on the Connecticut Child Support Guidelines, a key threshold number is 15%. If you reanalyze the Guidelines and find that the prescribed support amount would be 15% higher or lower than the current order, there is a rebuttable presumption that a “substantial change” has occurred to allow modification. Besides finances, other potential grounds for child support modification include changes to the parenting plan or one of the children reaching the age of majority. For alimony, a reduction, termination, or suspension of payments also ordinarily may be sought if a former spouse has remarried or cohabitated with a new partner.
 
Sometimes custody or parenting plans need to be changed as well, to account for changes among the parents and the needs of children as they grow older. For a court to consider a modification related to custody and parenting, it must be in the best interests of the children. As examples, a parent might consider a motion to modify custody or parenting if they desire additional parenting time, they would like to relocate a significant distance away, there have been changes to their work schedule or the children’s schooling, or the other parent is no longer acting in the children’s best interests.
 
When can the motion be sought? A post-judgment motion for modification can be filed at any time after judgment. It does not necessarily matter the age of the judgment, or how long ago the basis for modification arose, as long as the orders and basis are still active. Nonetheless, a party with a basis for modification should file as soon as possible after the basis arises. Certain forms of modification, particularly to alimony, can only be retroactive to the date the motion was served on the opposing party. For that reason, haste is important to securing the right to request a retroactive modification. This is particularly true at the current time, where it can take several months or more for your matter to reach a hearing with the court. The need for urgency is compounded by the fact that, if you are the payor and become unable to meet your obligation, you could become open to a finding of contempt by the court.
 
What should you do if you are considering a motion for modification? While the above provides a general overview of post-judgment motions for modification, it is not possible to be all inclusive. Above all, it is important to remember that, even if you could meet the standard for obtaining a modification of your divorce or custody orders, a modification is never guaranteed. The party seeking the modification bears the burden of demonstrating it is warranted, with consideration to the totality of the facts involved, generally subject to the judge’s discretion.
 
With this in mind, it is often preferable to seek the advice of an attorney experienced in Connecticut family law to determine if a motion for modification is the best approach for your situation, evaluate the likelihood of success, and assist with resolving the matter, whether by negotiating an agreement with the other party or handling the hearing with the court. If your circumstances may warrant a modification of your current orders, KKC’s family law attorneys have the knowledge and experience to put together a legal strategy that works for you and your goals.