Custody Arrangements

family law attorneyGenerally, in Missouri a divorce or dissolution of marriage judgment is final 30 days after a Judge has entered the judgment, assuming no challenges or appeals have been taken from the judgment. Once final there can be no change to the terms of the dissolution judgment regarding property or debts and/or the status of the marriage. However, the terms of the dissolution judgment that address child custody, child support and maintenance (formerly known as alimony) can be modified or changed as the need arises. The legal process for changing or modifying a dissolution judgment is called a modification proceeding.

If the focus of the modification proceeding is changing or modifying the maintenance terms, whether increasing, decreasing or terminating the amount of maintenance, the party moving to change the maintenance terms of the dissolution judgment must first determine that the maintenance provisions are in indeed modifiable. Most dissolution judgments entered in the last ten years will specifically state on the face of the judgment whether they are modifiable or not modifiable. If the dissolution judgment is silent on its face as to whether the maintenance award is modifiable, there generally is an assumption that the maintenance award is modifiable. This assumption is overcome or contradicted if the parties settled the dissolution case, as opposed to a judge deciding the terms of the dissolution judgment after a hearing, and specified in their settlement agreement whether the maintenance award is modifiable and whether the settlement agreement is incorporated into the dissolution judgment. If the settlement agreement provides that the maintenance is not modifiable such an agreement is binding on the court unless there are other factors that preclude the enforcement of such terms. If the settlement agreement is not incorporated into the judgment, the maintenance provisions are only modifiable as stated or provided in the agreement.

If the maintenance terms of the dissolution judgment are modifiable, then the party moving to change the maintenance terms must demonstrate that there has been a substantial and continuing changes of circumstances that renders the terms of the dissolution judgment unreasonable. Examples of situations that typically give rise to the filing of a modification proceeding include, but are not limited to, a reduction in income of the party paying maintenance, an increase in income of the party receiving maintenance, a significant increase in living expenses by either party, the failure of the party receiving maintenance to make a reasonable effort to become self-sufficient, or the cohabitation of the person receiving maintenance. The changes of circumstances that are relevant to the modification proceeding usually are those changes that have occurred since the court’s last maintenance judgment, although there are exceptions, and must not have been reasonably foreseeable.

family law attorneyNot every relevant change in circumstances will justify a modification of the dissolution judgment. Just because the person paying maintenance has had a reduction in income, or the person receiving maintenance has had an increase in income, does not automatically mean a modification is in order. The changes of circumstances must be substantial, that is minor changes don’t matter. The changes of circumstances must also be continuing, that is changes of short duration won’t support a modification. Consequently, while there is no specific rule preventing the filing of a modification proceeding within a certain period of time after a dissolution judgment, the practical effect is to limit the timing of when successful modification proceedings are filed. Typically, modification proceedings that are filed shortly after a dissolution judgment tend to address very drastic, significant and unforeseen changes of circumstances. Where the changes of circumstances are not as drastic the modification proceedings are usually filed several years after the entry of the dissolution judgment. (It is not unusual for modification proceedings to be commenced three to five years after the dissolution.) The standard for modification of maintenance provisions is intentionally high to limit frequent filings over minor changes or changes of limited duration.

Once a modification proceeding is commenced the legal issues typically focus on the income and/or earning capacity of the person receiving maintenance, the expenses of the person receiving maintenance, the efforts made by the person receiving maintenance to be self-sufficient, the earnings and/or earning capacity of the person paying maintenance and the expenses of the person paying maintenance. Initially, a determination has to be made as to what changes have occurred, are they significant and continuing, and whether the person receiving maintenance still needs maintenance and, if so, in what amounts. Also, a determination has to be made as to whether the person paying maintenance can still pay the existing maintenance amounts and can meet their own reasonable needs.

Modification proceedings are very fact intensive with a great deal of time spent reviewing the spending and earning patterns of both parties, and determining why someone’s employment or earning situation has changed. It is not uncommon for employers, or former employers, to be subpoenaed to produce earnings records and, if appropriate, provide explanations for why a party was downsized, laid off, left their employment, or had an income reduction. If the person receiving maintenance is unemployed or underemployed, it is not uncommon for vocational experts to be retained to assist in determine what appropriate employment may exist for the maintenance recipient. If a person has serious medical issues that affect their ability to work and/or cause them to have increased expenses, it is not uncommon for medical records to be reviewed, and/or doctors deposed.

If a substantial and continuing change of circumstances has been proven and the Court determines the terms of the prior maintenance judgment are no longer reasonable, the Court may reduce, increase or terminate maintenance, as is appropriate. Any such modification of the maintenance award can only be retroactive to the date of service of the modification motion and/or summons. Thus, there is a strong incentive for someone seeking to modify maintenance after a significant economic event has occurred to file a modification proceeding and get service on the other party sooner rather than later.

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Contact our office today at 314.448.4230 to schedule your consultation meeting. We are available to help advise you on your unique family law situation. Our legal team will be happy to set up a time that works best for you and your family.

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13321 N Outer 40 Rd
Suite 700
Town and Country, Missouri 63017

(314) 448-4230

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