• changing a divorce settlement agreement

Changing A Divorce Settlement Agreement

It is not uncommon for a party to a previous divorce to want to change their California divorce agreement. Sometimes both parties have decided they need to change a divorce agreement for one reason or another.  If there is a significant change in circumstances after the final divorce decree has been issued, changing a divorce settlement agreement may be necessary to modify certain provisions of the divorce agreement. It may be possible to take an ex-spouse back to court to have the divorce agreement modified, or the parties may agree between themselves to change a divorce agreement. Read on to learn more about changing a divorce settlement agreement and how A People’s Choice can help you.

Changing a Divorce Settlement Agreement – What Can You Change?

Changing Custody, Visitation & Child Support by Motion

If there has been a significant change of circumstances after a final divorce decree is issued in California, a spouse may seek to modify certain provisions of the divorce agreement. Modifications of child custody, visitation, and child support are three critical issues that can always be modified if the spouse can show a substantial change in circumstances.

In the event a spouse does not voluntarily agree to changing a divorce settlement agreement, a motion to ask to change the current custody, visitation and/or child support order can be made to the court. The motion must be filed with the court that issued the original divorce decree. The motion must be served on the non-moving spouse. The non-moving spouse will be provided the opportunity to file a response and contest the alleged change in circumstances the moving party claims. The court will review the evidence presented by both parties and make a final ruling. If the court determines that there is sufficient basis for changing the terms of the previous divorce settlement agreement, an order will be made by the Judge modifying the earlier agreement. From that point forward, the parties will be required to comply with the new order.

Changing Spousal Support

A Spousal support order may or may not be changed, depending upon whether the court still can make orders about spousal support. The ability for the court to be able to make orders on spousal support may be terminated if the parties agree to end the court’s jurisdiction over this issue. Jurisdiction is the ability for the court to make further orders on a particular issue. Very often, to close the issue of spousal support, the parties will agree to a permanent order that, by the terms of the agreement, includes specific language taking away the court’s ability to modify the order. Spousal support is one of the issues that the parties can completely close, meaning the couple can agree between themselves that the court can no longer make further orders or modify a previous order on this issue.  If the parties have signed an agreement and this language is included in the agreement, the court will not be able to change the terms of the spousal support agreement.

On the other hand, if the court still has the ability to change the spousal support order, the parties can either sign a modified agreement between themselves to change the current order or, alternatively, a party can file a motion to ask that the order be changed. As with child support, the court will need to decide that there is sufficient basis for changing the terms of the previous settlement agreement.

Things You Cannot Change in Divorce Settlement Agreement

Certain provisions of the divorce decree cannot be changed after a divorce is finalized. In particular, California courts will not reconsider the original property or debt division. The parties can, however, agree between themselves to change the terms of the property or debt division by stipulation and order to modify an earlier judgment. This is discussed further below.

If spousal support has been waived and the earlier settlement agreement took away the court’s jurisdiction over spousal support, the court will no longer be able to make orders about spousal support.

If a party is trying to change child custody, visitation, child support or spousal support,  the court will require that the parent prove a material change in circumstances to have these earlier orders modified. A change in circumstances means something significant has changed since the support or visitation order was made.

Change a Divorce Agreement by Filing an Appeal

Either spouse can appeal a trial court judge’s decision to a higher court (appellate court). It is rare for a divorce agreement to be overturned on appeal. Upon filing an appellate brief, the party who received an unfavorable ruling at the trial court level will be able to argue that the trial court judge incorrectly applied the law in making his/her decision. The opposing party will be able to assert an argument in support of the lower court’s ruling. Upon the submission of briefs to the appellate court, the parties may be granted the opportunity for oral argument. New evidence cannot be presented on appeal. Once the court makes its order, it will be binding on both parties.

Depending on the scope of the divorce agreement, there may be provisions that limit each party’s appeal rights. If this is the case, neither party may have standing to file for an appeal.

Change a Divorce Settlement By Agreement: Stipulation and Order to Modify Judgment

Under certain circumstances, both spouses may mutually agree (stipulate) to change certain provisions of the divorce agreement. Changing a divorce settlement agreement requires the new agreement to be in writing. The new agreement will address what is being changed and is submitted to the court for review. A Stipulation and Order to change a  judgment typically does not need a court hearing.  The document is submitted to the court, reviewed by the Judge and, if approved, becomes a court order. The modified agreement will be effective once it is approved (signed) by the judge. Once the modified agreement becomes a court order, both parties will have to abide by the revised terms of the agreement.

Contact A People’s Choice for more information about changing a divorce settlement agreement. We can offer you a number of low-cost options to change a divorce agreement. We can help you with preparing a Stipulation and Order if the parties agree, or prepare and file a motion if the parties do not. Call us for more information at 800-747-2780 or contact us through our website.

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By |2018-01-18T15:47:07+00:00February 6th, 2016|Family Law|0 Comments

About the Author:

Sandra M. McCarthy, founder of A People’s Choice Inc., has worked exclusively in the legal field since 1976. She served as the 2004-2005 President of CALDA (California Association of Legal Document Assistants). She obtained a Paralegal Certificate from the University of California, Santa Barbara. During her career in the legal field, she has worked as a freelance paralegal, law office manager and paralegal studies teacher, and has co-authored numerous legal publications and written hundreds of self-help legal articles. As a registered Legal Document Assistant, Sandy is dedicated to providing affordable, low-cost, self-help document preparation services for California consumers in all 58 counties.

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