As I stated in a previous post, there is no real way to “win” in a divorce or custody case, only mitigate the loss.
Motions to Modify, however, are not usually like the previous action, as what you are wanting is usually much more specific, and you now often have the evidence you need to show that the previous Order does not work.
You still likely will not get everything you want (if you are asking for several changes), but the Motion to Modify, if done correctly, will make things better for you and your children.
A Motion to Modify requires that there be a showing of a material and continuing change in circumstances for either the parent that has physical custody or the minor child (in custody case), or a showing that child support would be raised or lowered by 20%.
“I just don’t like the previous Orders” does not cut it.
Two of the most commonly requested modifications after a divorce are Child Support and Child Custody. These two things are typically the most aggressively contested matters in an uncontested divorce. According to the Missouri Courts website, “Although not always the case, modification of child custody may require modification of child support.”
In other words, the two, at times, can be somewhat intertwined.
To “win” your Motion to Modify, there are some things that you need to be prepared to do.
First and foremost, you must be able to show that you have a clear understanding of what the problem is, and have a solution for that problem. Really look and see if you have a solution before spending thousands of dollars. If you don’t have all of the answers, that is okay, but talk with a family law attorney and see if they might have a solution in mind.
You also need to ensure that your side of the street is clean.
If a Motion to Modify is filed, it is likely a Counter-Motion to Modify will also be filed. Have you been following the Orders? Is there something that you need to worry about?
Talk to your child custody attorney to see if they recommend filing the Motion to Modify, and be honest about things that might come back on you if a Counter-Motion to Modify is filed. It is important to get guidance and find out if you may actually lose more than you stand to gain.
The most common Motion to Modify that we see is when one parent wants to change the parenting plan or the child support.
I will focus on the parenting plan (as that usually has an impact on child support).
To get a Motion to Modify granted that changes the parenting plan, you need to show that something has changed for the child or the parent that has physical custody.
If you only have visitation, in theory, a change in circumstances is not grounds for a modification (though I have found that Judges often grant the Motions anyway, as a change affecting a parent often has some change on the child).
The change cannot be a temporary change, and it needs to be a somewhat substantial (often called “material”) change in the circumstances.
The proposed solution also needs to be found to be in the best interest of the minor children. This could be something like a job transfer to another state, and a new parenting plan to account for the new schedule.
Or it could be that a parent continues to alienate the children from the other parent, which the Courts believe is not in the children’s best interest.
There are a number of reasons why you would want to modify your parenting plan or custody, and you need to talk to an experienced family law attorney to see if your reasons would likely sway the Judge.
The other Motion to Modify that is often filed is to change the child support. A temporary change will not allow the Motion to Modify to be granted.
If you lost your job and anticipate getting a new one soon, you may want to consider holding off to see if this is worth that. However, the Court can only go back and change the Ordered support amount to when the other party is served, so I would not wait too long.
This may also sound crazy, but if you are going to jail, you need to modify the child support ASAP. I cannot tell you how many people call my office and are tens of thousands behind on child support after serving a jail or prison sentence.
You also need to be aware of the imputation of income, which is the Court finds that you are intentionally unemployed or underemployed, and uses the salary they think you are capable of making when calculating child support.
So, if you were fired due to misconduct (example: drinking on the job), or you quit your job without good reason, the Court will likely put in your former wage in the calculations on Form 14 when calculating child support.
The answer this question depends on both the complexity of the change and, in some cases, your relationship with your ex-spouse/partner. The Missouri Court’s Motion to Modify Child Custody and Support page says:
“Parents may agree to an informal simple or minor change. Such simple or minor changes may include a change in days, times or exchange location. In some cases a parent may want a more major change, such as where the child resides the majority of the time. This would require a new court order to be binding. Unless the agreement is formally filed with the court and approved by the court the prior parenting plan remains in effect.”
In other words, for the changes to be official (or binding), you must have the changes filed with the court. This can technically be done without a family law attorney, however, we recommend at the very least consulting with a lawyer to make sure you are covered.
The reality is that a Motion to Modify can occur for many reasons but go into it knowing that you may have a Motion filed against you and that you may lose more than you gain.
A knowledgeable family law attorney can help you determine what the pros and cons are and guide you through the process.
Contact the St. Louis divorce lawyers at Haefner Law Office at (314) 200-6101 and set up your free 30-minute phone consultation with a dedicated family law attorney to discuss your case, get some guidance, and see if we are the right fit for you.
It may just be the most important call you ever make.
Aug 21st, 2024
Child Support, Divorce, Divorce Process, Family Law, Missouri Divorce Laws
Jun 13th, 2024
Divorce, Divorce Mediation, Divorce Process