Authored by Anthony Doss and Benjamin Hirshfield
Once a divorce is final, can it be changed?
In most cases, yes. Generally speaking, there are three areas in which a divorce decree can be modified: maintenance, child support, and parental responsibilities.
Modification to Maintenance (also known as “Alimony”)
Spousal Maintenance, sometimes referred to as “Alimony”, is a payment ordered by the court in an attempt to fairly and equitably distribute the income of the parties and provide for the “reasonable needs” of the lower earning spouse. The court will determine the amount to be paid and the length of payments based on a number of factors, including the financial resources of each party, the age and health of the parties, and the length of the marriage. Occasionally after an order is entered, one or both former spouses will want to modify the maintenance order to change the amount paid or the duration of payments. If you are looking to modify the maintenance award in your case, the attorneys at Burnham Law can provide the advice and representation you need to be successful.
Seeking a modification to maintenance in Colorado
A modification of maintenance is not always a possibility. In limited cases, a divorce decree will restrict a Colorado court’s authority to review maintenance orders. This occurs when there is an agreement between the parties at the time of the divorce that includes specific language setting the maintenance as contractual and non-modifiable. Similarly, the agreement may end the maintenance payments upon a party retiring or remarrying. In most situations however, the court retains jurisdiction over the issue of maintenance.
Assuming that there are no agreements to prohibit modification and the court retains jurisdiction, the statutory standard for modification of maintenance in Colorado is whether there are “changed circumstances so substantial and continuing as to make the terms unfair.” This means that the courts will consider more than the current incomes of the parties, instead looking at the totality of the circumstances, both financial and otherwise.
Some reasons for a modification of maintenance might be an increase or decrease in income for either party, an inheritance, or a life changing disability. As discussed above, the remarriage of the recipient spouse can terminate maintenance entirely, as can the death of either spouse.
The family law attorneys at Burnham Law have decades of experience and are available today to guide you and give you the peace of mind of knowing that you are in good hands.
Modification to Child Support
The court will consider many factors when determining child support. Some of the most common factors are:
- The incomes of both parents;
- The number of children;
- The number of overnights the non-custodial parent has with the children;
- Costs related to the children (ie. Daycare, medical coverage, etc.).
Colorado Revised Statute C.R.S. 14-10-122 allows for either parent to request a modification in child support if there is a “substantial and continuing change in circumstances” since the previous order. This requirement can be met by showing aloss of job, a significant increase or decrease in the income of either party, or a change of the physical custody of the children. The court will review the changes in circumstance to determine if they are significant enough to warrant a modification in the child support order.
Modification to Allocation of Parental Responsibilities (Also known as Custody).
The allocation of parental responsibilities, commonly referred to as Custody, is another court order which a party may seek to modify. The allocation of parental responsibilities determines who the child lives with, who is authorized to make the major decisions for the child, and what parenting time (commonly known as “visitation”) will be for the non-custodial parent. A parent is not responsible for anticipating every possible way their lives could change between the dissolution of their marriage and the time their children reach the age of majority, currently 19 years of age. To accommodate for unexpected changes, the court may allow modifications to the allocation of parental responsibilities, parenting time, and decision-making.
The court will look at any change in circumstances since the previous order was entered, or any facts that were hidden from the court when the last order was entered, to determine if a modification of the allocation of parental responsibilities is in the best interest of the children.
Modification of Parenting Time
Modifying parenting time, formerly known as “visitation”, is governed by C.R.S. 14-10-129. Unlike the statutes for modifying child support or maintenance, the statute to modify parenting time doesn’t necessarily require a change of circumstances. The standard for modifying parenting time is the “best interest” of the children, meaning the court can make changes based solely on what it deems to be in the best interest of the children. However, if you are looking to change the actual residential custody of the children, and the other parent does not agree, the standard is a showing of either physical or emotional endangerment.
The family law attorneys at Burnham Law are aggressive and experienced and will help you successfully navigate your post decree modification.