Many people believe that, once a divorce decree has been entered, their involvement with the court is over, but that is not always the case. There are some circumstances when either party to the divorce can petition the court to modify the decree.
Under Utah law, the court which enters a divorce decree retains authority to modify the decree. In order to obtain a modification, the party who files the petition for a modification must show:
• That there has been a substantial change of circumstances; and
• The change which is requested is in the best interests of any children.
Change of Circumstances
The change of circumstances may include the relocation of one of the former spouses, a change in the children’s situation, child abuse charges brought against either parent, or a change in the income of either party. There is no limit on the kinds of changes which could occur and give rise to a petition to modify the decree.
On the other hand, because the legislature does not want parties filing a petition to modify child support every time their former spouse gets a raise, the legislature has created special rules for modifications based on a change in income.
If there has not been a modification of the child support amount in the last three years, the courts will modify a child support award if the new child support award would be 10% higher or lower than the current child support amount. In that case, the change in the child support award is considered a substantial change of circumstance.
If there has been a modification of the child support award in the last three years, the court will modify the child support only if the income of one parent has changed more than 30%. In that case, the change in income is considered a substantial change in circumstances.
If the party who has filed the petition for a modification fails to prove that there has been a significant change of circumstances, the court will not examine whether the requested change would be in the best interests of the children.
Best Interests of the Child
A requested change must also be in the best interests of the children. For instance, if the parent who has custody of the children relocates, the other parent may ask for a change in custody so the children can stay in their present neighborhood and schools. In that case, there is a change of circumstances, and the court would have to determine which is better for the children: to stay with the custodial parent or to stay in their present area.
There are also some modifications which do not depend on whether the requested modification is in the best interests of the children. For instance, a party paying alimony may ask for a reduction in the alimony when the party retires. In that case, the children are usually grown and their best interests are not a factor.
One word of caution is probably necessary on filing petitions to modify a decree. The legislature has adopted a statute which states that a party who files a petition to modify which has no merit and was filed without good faith must pay the fees of the other party. So you always want to be sure you have a meritorious claim before filing a petition to modify a decree of divorce.
If you believe you have grounds to modify your decree of divorce, call us today to speak to one of our family lawyers.