Going through a divorce can be hectic, and it is hard to ensure that every possible need is covered in the divorce decree. Fortunately, you can file to modify, or amend the decree. Before filing, consider when a divorce can be modified, in what circumstances a divorce can or cannot be modified, and the process of obtaining a divorce decree amendment.
Requirements for modification
Generally speaking, there is no time limit to having your divorce decree modified. Because living expenses and employment opportunities are constantly changing, it is possible to amend your divorce decree at any time. That said, many states do have a time limit on changing child custody arrangements. Illinois courts will not revisit child custody until two years after the original decree, in order to help maintain stability for the child. The courts also try to rule in favor of what will be best for the child. For example, if your former spouse has custody during the school week and lives near the child’s school, the courts would not be likely to grant you custody during the school week. Fortunately, if you and your former spouse agree on minor custody changes, it may be possible to arrange custody without a court hearing.
A divorce decree can be modified if the terms of the divorce are unjust or conditions have changed since the divorce. Once the divorce is finalized and the time of appeal has passed (which is generally within 30 days of the decree), you cannot amend the division of property and liabilities. The court has no power to reconsider property matters after the time of appeal. Modifications are generally in the area of child support or visitation rights, and only under extreme circumstances can property matters be revisited.
Obtaining an amendment to a divorce decree isn't easy, but it can be worth your time if you are well prepared.
The modification process
The following guide will help give you an idea of what the process is like.
Step 1: Attempt to resolve the issue out of court.
For example, if the divorce decree states that child custody visitation is to begin on Friday, but you need it to begin on a Thursday, see if you can arrange that outside of court by talking to your ex-partner. If both you and your former spouse agree on the amendment, the court considers it an Uncontested Amendment, and it can legally be filed without a court date. If this is not an option, or your former spouse contests the amendment, move on to step two.
Step 2. Determine which part of the divorce you need modified.
Any change in circumstances, whether financial or otherwise, can cause you or your former spouse to seek amendments to your divorce decree.
Has the loss or gain of a job resulted in an income change for you or your spouse? You might be looking to modify how much child support you pay, based on the changes in your respective incomes.
Have childcare expenses risen because your child is older? It is common to seek increased alimony because your child has increased expenses, or if you are trying to decide who will pay for the child’s college.
Other common reasons to seek an amendment include changing how much TV or internet time a child is allowed, a change of job or address, and visitation schedules.
Step 3. Fill out the proper form.
The forms you need can be obtained from the clerk of the court where the divorce was filed. While it is possible to fill out these forms yourself, it is highly recommended to hire an attorney to help you construct a good case.
You will have to include information from your original divorce decree in the paperwork, such as the judge who presided over your divorce hearing, the names of the plaintiff and the defendant, and the case identification number.
You will also need to define what needs amending, and why.
Step 4. File your form with the clerk of the court.
In some states you will receive a court date immediately after filing the amendment forms with the clerk of court. In other states, you may have to wait until your former spouse has been served.
Step 5. Serve the other party.
Have the other party properly served and informed of your request for an amendment. You will then be assigned a court date.
Step 6. Attend your court date.
This is the final step, and possibly the most important one.
Remember to present yourself well, be prepared, and stay on point. Don’t stray from the reasons why you need the decree amended. After the hearing, the judge will consider both sides of the proposed amendment and declare a ruling.
Hiring an attorney
While it is possible to modify a divorce decree without an attorney, hiring one may be in your best interests. Obtaining a divorce decree amendment is not easy, but when it can improve your life, or the life of your child, it is certainly worth it.