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Modifying Your Divorce Agreement

While an appeal to a divorce decree must be completed within 30 days, a modification to a divorce agreement can be requested at any time after the divorce. It is not uncommon that, after significant time has passed, circumstances have changed enough to warrant an alteration of the divorce agreement.

If both spouses agree to the changes, the process is fairly simple. The agreement must be in writing and submitted to the court in which the divorce decree was issued. Sometimes there is a hearing to ensure that both parties truly agree, then the judge signs off on the agreement and it becomes a court order. Working together with your lawyer to ensure the divorce agreement is written properly is the easiest and best way to make changes to a divorce agreement.

However, sometimes former spouses cannot agree. In this case, the person who wants the modification must file a motion for modification with the court that issued the divorce and serve it on the other spouse. Getting a modification from a court is not easy because you will have to present proof of significant, long-term, or permanent changes that justify the modification.

Courts rarely modify property or debt distributions in the original divorce agreement, but changes to spousal and child support and changes to custody and visitation are not uncommon. Where children are involved, the person seeking modification must prove that the change is in the best interest of the child.

Reasons for modification of support

A significant change in income is often grounds for modification, whether you are the payer or the receiver. If the payer gets a significantly higher paying position, the receiver may request more spousal or child support. Additionally, if the receiver loses a job, more support could be requested.

Conversely, if the payer loses a job or gets a significantly lower-paying job, the payer can request a decrease in the amount of support paid. This is also true if the payer has more children with a new spouse, demonstrating a need to support other children. One caveat: A parent cannot purposely take a lower-paying job in order to request a change in support. This may be difficult to prove, but if suspected, it could be considered contempt of court.

In the case of child support, the receiver may demonstrate a significant change in the child’s health or condition to warrant an increase in support or the payer may demonstrate that the child now needs less support. In these cases, courts will keep in mind the best interests of the child.

Reasons for modification of custody or visitation

A change in the condition of parents or children can justify a request for modification.

If one parent was ill-fit for joint or sole custody at the time of the divorce and can now prove he or she is fit, a case for modification may be made. However, a formerly unfit parent cannot demand sole custody if the parent who currently has sole custody is still a fit parent.

If a parent who has sole or joint custody becomes unfit, or if any child abuse or substance abuse can be demonstrated, custody provisions can be modified, keeping in mind the best interests of the child.

If your child is spending more time with you than is listed in the custody agreement, you may wish to modify the agreement so that you can legally protect this precious time together. The additional time also means an increase in child expenses on your part, suggesting a need to modify support as well.

Your next steps

In any of these situations, you will need to show significant evidence in order to convince the court to change the agreement. Laws that govern the standards to be met in each case vary from state to state, so be sure to talk to a lawyer who is expert in the divorce laws of the state in which your divorce was issued. We here at Ulmer are experts in Pennsylvania law. Reach out to us to see how we can help you.


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Proving Your Ex is Cohabitating

Spousal support and alimony are calculated based on a complex combination of factors including income, age, health, length of marriage, and expenses. These calculations vary from state to state, but the assumption is usually that the spouse receiving support from the ex (and statistically, it’s usually the wife) does not have another adult partner helping to provide financial support.


But what if you suspect your ex-wife is living with someone and getting help paying the bills? This doesn’t have to be a romantic relationship. The issue is primarily whether or not she’s getting financial help. If that’s the case, your support or alimony would likely be reduced or terminated. So how can you prove it?


1. Surveillance: This can be done by you or by a private investigator. A private investigator may be pricey, but you will avoid the possibility of being accused of stalking or harassment. In addition, a private eye can testify in court. One thing to look for is car activity. Is your ex-spouse’s car at another address overnight on a regular basis, or is someone else’s car at her house overnight frequently? Get pictures of the car there late at night and still there early the next morning. Getting pictures of your spouse or the other person coming or going is also helpful.


2. Look for evidence: You’ll want to interview neighbors and friends. Ask questions that may lead to information about the living arrangements or recent behavior of your ex. You should also watch social media. Are there lots of posts that mention a significant other? Images of them together? Take screenshots.


3. Get subpoenas: Cell tower location data will tell you where your spouse has been. Records from the landlord, utility companies, and banks that hold loans or the mortgage can help determine who’s writing the checks. A records request from local law enforcement can tell you who has listed that address as their address. It will also tell you if there’s been any police activity there.


This information may be particularly valuable if children are involved. Cohabitation may affect child custody arrangements, especially if any police activity has taken place at the residence where your spouse lives.


Again, rules change from state to state, and some require remarriage to terminate alimony. Look into the rules of your state on this matter, and if necessary, take some of the steps listed above to find out once and for all if your spouse is getting significant financial help.

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Alimony

Alimony is support paid to an ex-spouse following the divorce decree. The amount of alimony is based on the incomes of the parties but may also be affected by the distribution of other marital assets, if any. The length of alimony is directly attributable to the length of the marriage. For example, a party may expect approximately 1 year of alimony for every 3 years married. For marriages of over 25 years, an indefinite term of alimony may be appropriate. Unless otherwise stated by agreement, alimony may be subsequently modified due the changed circumstances of either party. The changes must be substantial and of a continuing nature. Parties to a private agreement may stipulate that alimony is non-modifiable in amount, duration, or both.

If a court is making a decision on an alimony award they must consider the factors listed in Section 3701 of the Domestic Relations statue. The factors to be considered by the court include: (1) The relative earnings and earning capacities of the parties; (2) The ages, and the physical, mental and emotional conditions of the parties; (3) The sources of income of both parties including but not limited to medical, retirement, insurance of other benefits; (4) The expectancies and inheritances of the parties; (5) The duration of the marriage; (6) The contribution by one party to the education, training or increased earning power of the other party; (7) The extent to which it would be inappropriate for a party, because said party will be custodian of a minor child, to seek employment outside the home; (8) The standard of living of the parties established during the marriage; (9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment; (10) The relative assets and liabilities of the parties; (11) The property brought to the marriage by either party; (12) The contribution of a spouse as homemaker; (13) The relative needs of the parties; (14) The marital misconduct of either of the parties during the marriage; however, the marital misconduct of either of the parties during separation subsequent to the filing of a divorce complaint shall not be considered by the court in its determinations relative to alimony. Adultery can serve as a bar to alimony.

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APL

Alimony Pendente Lite, or APL, is spousal support while the divorce is pending. A party may petition for APL at the same time as the divorce complaint or any time thereafter prior to the entry of a final decree. The purpose of APL is to ensure each party has the ability to sustain themselves during the divorce. A party seeking APL should be ready to prove they lack sufficient property to provide for their reasonable means and are financially unable of self-support during the pendency of the divorce litigation. It is the income-dependent spouse who would have the opportunity to receive APL. The court may consider the duration of the marriage in making any award. This is to ensure one party does not benefit from a significant support award in the context of a very short marriage.

In a case with children, the APL award will be 30% of the difference of the parties’ net incomes after the child support obligations of the case have been applied. In a case without children, the APL award will be 40% of the difference of the parties’ net incomes. An award of APL is not appealable until after the divorce is final. The reason for that being that APL is not considered a “final order” as is required before an appeal can be taken. APL and spousal support are calculated the same way however, APL can be seen as preferable to spousal support in that there are no defenses to APL whereas for spousal support any conduct that would constitute fault for a divorce matter can result in an inability to receive spousal support. Spousal support can be filed as soon as parties are separated and is not contingent on a divorce action pending.

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Spousal Support

Section 4321 of the Domestic Relations laws provides that married persons are liable for the support of each other according to their respective abilities to provide support as provided by law. Similar to child support, spousal support will be calculated based on a statewide guideline. Without children, spousal support is 40% of the difference of the net incomes of the parties. If there is also a child support order, spousal support will only be 30% of the difference of the net incomes. There is a defense to the duty to pay spousal support where the spouse seeking support has engaged in conduct that would constitute grounds for a fault-based divorce. The fault grounds under the Pennsylvania Divorce Code include: (1) willful and malicious desertion without reasonable cause for at least one year; (2) adultery; (3) cruel and barbarous treatment of an injured and innocent spouse; (4) bigamy; (5) imprisonment for at least two years after conviction of a crime; and (6) indignities to the innocent and injured spouse which makes that spouse’s condition intolerable and life burdensome.

It is up to the spouse who is objecting to a spousal support award to prove a fault ground for divorce by clear and convincing evidence. Many cases have touched on the issue of whether spousal support is appropriate if the other party had another relationship outside of the marriage. In this scenario the spouse objecting could raise a defense by seeking to prove adultery or indignities. Adultery is defined as voluntary sexual intercourse with a person other than his/her spouse. “Indignities may consist of vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate and estrangement.” A single act by a spouse will not support a finding of indignities. Instead, it must be a course of conduct that renders the life of the innocent party intolerable or burdensome. A party objecting to spousal support should be aware that conduct which takes place after separation is generally not relevant. It should only be introduced if you can show the conduct began before separation. Parties should be careful of the timing of new relationships if seeking spousal support.

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APL vs. Spousal Support

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APL is short for alimony pendente lite which translates to alimony while the divorce is pending. Spousal support can be sought when the parties are separated and potentially before a divorce matter is pending. Often, these two terms for support between spouses are used interchangeably. This is due in large part to the fact that they are calculated the same way. Both forms of support are based on the difference in the spouses’ incomes. Pursuant to Pennsylvania Rule of Civil Procedure 1910.16-4, without children, spousal support or APL is 40% of the difference of the net incomes of the parties. If there is also a child support order, spousal support or APL will only be 30% of the difference of the net incomes. Additionally, both forms of support are generally retroactive to the date of filing. However, the underlying purpose of the support award and potential defenses available distinguish APL from spousal support.

The purpose of APL is to allow the income-dependent spouse to be able to defend themselves in the divorce action. In that regard, marital misconduct is not a factor in an APL award. This may even apply to situations where the party seeking APL is already cohabiting with someone else. In contrast, there are defenses to a spousal support award. Generally, any conduct that would constitute fault for a divorce matter can result in an inability to receive spousal support. It is up to the spouse who is objecting to a spousal support award to prove a fault ground for divorce by clear and convincing evidence. Conduct which takes place after separation is generally not relevant for establishing fault as a defense to a request for spousal support, however, such conduct may be introduced if it will go to show the conduct began before separation. Cohabitation is grounds for termination of a spousal support award.

Click here to read more about spousal support.

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File to Modify Support if you are laid off

Whenever there is a change income, whether it is the party receiving child support or the party paying child support, it is that person’s responsibility to file to modify the support order. When someone is suddenly let go from work, even if they qualify for unemployment income, it is often necessary to file to modify support. Even though the wages are attached and the court receives their funds from unemployment, this still does not mean the court is put on notice. You must take initiative and file to modify the order. Even if it is temporary, you should do this in case you are out of work longer than you anticipate. Having to pay a support order based on income you no longer have can be disastrous. In addition, if you have lost health coverage, it is important that you notify the other party as soon as possible. If you are receiving support, likewise, you should file to modify your support order. Support orders are modifiable if either party experiences a change.

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Keeping Medical Records for Support Orders

If you have a charging support order in PA for either child or spousal support, you likely have to pay the first $ 250 in out of pocket medical expenses each year per person before the remainder are allocated based on a percentage. You need to keep good records in order to receive your remainder share. You should create a list per person of all medical bills per person that are received each month and keep a copy of the bill. You will also need to keep a copy of the check or credit card receipt showing that you paid the copay or bill. Once you have reached $ 250 for the year, you should provide the documentation showing that you reached this limit and then start keeping track of all bills that come in for the rest of the year and request the percentage the other side is responsible to pay. You will likely have to front the money and seek reimbursement. In all cases, if payment is not made by March of the following year, you will need to file contempt with the court in your Domestic Relations office and again provide proof of notice and payment. It pays to be organized and you should make this something you do in January of each year.

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Disabled? Unemployed? When to Modify your Support Order

Whether you are receiving or support, it’s important that if you become disabled, or end up on unemployment, even temporarily, that you file to modify your support. Just because you are out of work, or undergo surgery, does not mean that you can explain it all later to the Court. Nor does it mean that your support will not be due. You need to file to either lower or stop your support if you are paying during the period of time you are disabled or out of work. Otherwise, if you do nothing, the amount you were ordered to pay will continue to charge against you and you could find yourself in contempt if it is not paid. If you are the one receiving support and you become disabled, or suddenly lose your job and are on unemployment, you need to file in order to see if you can get an increase in support temporarily while you are out. If you are unable to file yourself, it may be a good idea to give someone you trust a Power of Attorney to file on your behalf.
Support is modifiable whenever there is a change in circumstances. It does not always have to be due to a disability or unemployment. Whenever there is a change income or any of the factors that play into a support order such as child care expenses, health insurance expenses, etc. you may need to go back to court have your support order recalculated. If you think you may have a change in circumstance that warrants a modification, always consult with an attorney.

For more information, please see:/Family-Law-Divorce/Child-Support/

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Defense to Spousal Support

A claim for spousal support may be denied where the spouse seeking support has engaged in conduct that would constitute grounds for a fault-based divorce. The fault grounds under the Pennsylvania Divorce Code include: (1) willful and malicious desertion without reasonable cause for at least one year; (2) adultery; (3) cruel and barbarous treatment of an injured and innocent spouse; (4) bigamy; (5) imprisonment for at least two years after conviction of a crime; and (6) indignities to the innocent and injured spouse which makes that spouse’s condition intolerable and life burdensome.

Many cases have touched on the issue of whether spousal support is appropriate due to alleged existence of another relationship outside of the marriage. It is up to the spouse who is objecting to a spousal support award to prove a fault ground for divorce by clear and convincing evidence. Adultery is defined as voluntary sexual intercourse with a person other than his/her spouse. Alternatively, indignities may be established even when the evidence does not necessarily support adultery. “Indignities may consist of vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate and estrangement.” A single act by a spouse will not support a finding of indignities. Instead, it must be a course of conduct that renders the life of the innocent party intolerable or burdensome. Conduct which takes place after separation is generally not relevant, however, such conduct may be introduced if it will go to show the conduct began before separation.

Click here to read more on spousal support. 

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