Divorce courts have jurisdiction to modify child support orders, child custody matters and most spousal support maters. Modifications are brought before the divorce court by the filing of a Request For Order (RFO).
Child Custody: Modification of Orders
All child custody orders are modifiable and all parts of a child custody order are modifiable. Even an order that specifically states that it is not modifiable, is modifiable. The divorce court will not enforce a non-modifiable child custody order, in that a non-modifiable order is deemed to be contrary to public policy.
Temporary child custody orders may be, but rarely are modified. Practically speaking, the divorce courts are reluctant to modify a temporary child custody order unless there is an issue related to the safety of a child. The divorce courts are very reluctant to dedicate the court's resources for multiple temporary custody hearings.
Final or permanent (also known as post-judgment) child custody orders may be modified if there has been a ‘significant change in circumstances’ since the last child custody order was entered (IRMO Keith R.). It is the burden of the divorce lawyer representing the parent who is attempting to modify the child custody order to show that required changes have occurred. The changes that divorce courts look to in making this determination relate to the child’s health, education and welfare. Different divorce courts may evaluate changes of circumstances differently. Here also the courts have wide discretion.
A final order is an order that specifically states that it is a final order or a "Montenegro" order (IRMO Montenegro).
If the child custody order sought to be modified is not clearly designated as a final child custody order, a modification may be based on the child’s ‘best interests.’ The ‘best interests’ test is a lower threshold test than is the ‘substantial change in circumstances’ test. In other words, using the ‘best interests’ test, the divorce court may consider any and all relevant factors in making the determination, whereas with the ‘substantial change of circumstances’ test, the divorce court may only look to whether there has been a change in the facts and circumstances that existed as of the date of the last child custody order. If there has not been a change in the facts and circumstances, the divorce court cannot modify the child custody order, even if the court believes that it would be in the child’s best interests to make a change in the order.
If the divorce court is simply changing the residential arrangement of a joint custody order, the matter may not be characterized by the court as a custody modification and a change of circumstances may not be required even if the order is a final order (IRMO Birnbaum).
Move Away / Relocation
If one parent makes the decision to attempt to relocate the child’s residence, the child custody order, will necessarily have to be modified in one way or another. A party will, of course, be able to relocate their own residence. The question will be whether that parent will be allowed to change the residence of the child. When a divorce court makes the determination as to whether a parent may relocate a child’s residence, the divorce court must assume that the parent will, in fact, move regardless of whether that parent is allowed to relocate the child’s residence. The divorce court cannot make an order that provides for one custody order if the parent moves and a different custody order if the parent elects not to move after learning of the court's order.
If a parent has substantially more physical custody time than the other parent, moving parent does not need to prove that the move is necessary (IRMO Burgess). The divorce lawyer representing the parent opposing the move must show that the move would be detrimental to the child. If that fact is proven by the non-moving parent, then the court must evaluate all of the relevant factors to determine whether a relocation is in a child’s best interests or whether a change of custody to the non-moving parent is in the child’s best interests. In other words, the court must make a determination as to which parent the child shall live with after the anticipated move.
The divorce court will look to a number of factors in making the determination relative to the move away including, but not limited to the following: extent of shared custody, willingness to place the children’s best interests first, reasons for the move, relationship of the child with each parent, distance of the move, age of the child, ability of the parents to cooperate and communicate, stability and continuity, relationship of the parents, and the child’s wishes (IRMO La Musga).
Where parents have a working shared custody arrangement, the divorce court must conduct a hearing to determine whether the relocation of the child’s residence is the child’s best interests.
If a child custody order has not been made or if the child custody order is not a ‘final’ order, the court will use the ‘best interests of the child’ test in making the decision on the relocation.
Child Support: Modification of Orders
All child support orders and all parts of child support orders are modifiable if the circumstances warrant a modification pursuant to the family code. The parties may agree to any level of child support they choose. However, such an agreement is not binding on either parent or the divorce court. A child support order that specifically and clearly states that it is non-modifiable is still modifiable. In other words, the parents could agree to a child support order that is below the guideline level and further agree that they will not seek to change the support amount. The payee-parent could petition the divorce court the following day for a modification of child support to increase child support to the guideline level and generally that request will be granted.
Child support is calculated using a computer program (Dissomaster/X-Spouse) and taking into consideration a number of factors including, but not limited to: the parent’s respective incomes, child custody timeshare, deductions, etc. The divorce courts are required to make a finding as to the amount of guideline child support. That sum will become the order of the divorce court unless the court departs from the guideline child support which the court can do for ‘good cause.’ Departures from guideline child support may be, but rarely are, ordered. A divorce court has the discretion to set child support below the guideline amount if the payor-parent is found to be a ‘high-earner.’ If a finding of ‘high-earner’ status is made then the divorce court must first determine the guideline child support level. After the guideline child support is determined the divorce court is required to make a finding as to whether it is the child’s best interest to receive the level of child support generated by the computer formula.
Only if the court finds that the guideline amount is unjust, will the court depart from guideline child support and reduce the amount of the child support.
Generally the amount of child support will increase if the payor-parent’s income increases but it will not necessarily increase to the guideline level if the amount of the parent’s income results in a finding of ‘high-earner’ status. The divorce court has wide discretion in making the determination as to whether a parent is a ‘high-earner’ and as to whether to depart from guideline child support. The income level that justifies a ‘high-earner’ finding may differ from county to county and from courtroom to courtroom within the Orange County Superior Court.
The divorce court may also depart from guideline for other equitable or economic reasons if it finds ‘good cause.’ ‘Good cause’ may be found when a child’s special needs are involved, when there are special education related issues, in situations where there was a deferred home award, where the recipient parent is not paying for his/her share of the expenses of the child in reasonable relation to that parent’s time share, travel expenses, and other circumstances where, without a departure from guideline the child support level would create an inequitable and unjust result.
An agreement to pay child support in excess of guideline child support is not modifiable downward to the guideline amount unless the payor-spouse’s income decreases and such a decrease constitutes a material change in circumstances.
An increase or decrease in the income of either parent or the increase or decrease in the custody timeshare between the parents often results in a modification of child support.
The divorce court does not have jurisdiction to retroactively decrease or increase child support relative to a period prior to the filing of a request for modification of child support by a parent.
Spousal Support: Modification of Orders
Spousal support orders are modifiable by the divorce court unless they specifically and clearly indicate that they are non-modifiable. If a spousal support order is designated as a non-modifiable order, the divorce court loses the ability to modify spousal support upwards or downwards regardless of the hardship that has occurred or may occur in the future. A divorce court cannot make an order for non-modifiable spousal support but parties may agree to such a provision.
The basis for a modification of a spousal support order is a ‘change in circumstances.’ The ‘change in circumstances’ test applies to both divorce court orders and to agreements or stipulations entered into by the parties. The circumstances that are evaluated by the divorce courts in determining whether an order should be modified, generally relate to the changes in the respective needs of each party and the changes in the respective earnings of each party.
The ability to earn versus the actual earnings, may also be relevant in the analysis.
In the analysis as to whether to impute income to a party relative to spousal support, the divorce court is to look to a reasonable work regimen for the industry involved (IRMO Simpson).
A loss of a well-paying job and a good faith effort to obtain another well paying job that results in a lower level of compensation will generally constitute a change of circumstances and a reduction in spousal support.
Unrealized expectations relative to earnings may also be relevant and may constitute a change in circumstances (IRMO Beaust). The failure of a supported party to become employed or self-supporting may justify a modification of spousal support. Generally, the mere passage of time alone does not justify a modification of spousal support (IRMO Wilson).
An increase in the earnings of the payor spouse by itself does not justify an increase in spousal support. For such an increase to constitute the basis for a modification of spousal support, the supported spouse must prove that his or her needs were not satisfied by the spousal support ordered in the judgment. In other words, if the amount of spousal support ordered in the divorce judgment was capped due to the payor party's earnings and was not sufficient to meet the supported spouse’s marital standard of living at the time the divorce judgment was entered, an increase in the income of the supporting spouse may constitute the basis for an increase in spousal support (IRMO Hoffmeister I).
Marital standard of living is relevant to a modification of spousal support but it is just one of many factors and it is not dispositive (IRMO Smith). The marital standard of living is less significant with the passage of time (IRMO Rising).
The supporting spouse cannot be required to work beyond the date of normal retirement relative to payment of spousal support to the supported spouse. In other words, you cannot impute earnings to a party after the normal retirement age of 65 (IRMO Reynolds).
Spousal support may be modified based on the term of the marriage depending upon the specific terms of the judgment.
An increase in guideline child support may be a factor for the divorce court to consider relative to reducing spousal support (IRMO McCann). The termination of child support may be a factor relative to increasing spousal support (IRMO Kacik and Family Code Section 4326).
In determining whether to modify or terminate spousal support, the divorce court will look to the supported spouse's history of seeking employment back to initial divorce judgment, not just since the date of the last hearing that addressed the issue of spousal support. The divorce court will look to whether the supported spouse has made reasonable and good faith efforts to become self-supporting (IRMO Schaffer II).
Generally, the income of a new spouse of the supporting spouse is not considered by a divorce court relative to a modification of spousal support.
Cohabitation of the supported spouse with a third party may constitute the basis for a modification of spousal support by the divorce court. There is a rebuttable presumption of reduced need when the supported spouse is cohabiting. It is not necessary for the parties to hold themselves out as husband and wife relative to a finding of cohabitation. It is the burden of the supported spouse to rebut the presumption of reduced needs if cohabitation is found to exist.
Spousal support may not be modifiable to a date that preceds the filing of the Request For Order (RFO) filed with the court to modify spousal support.