What terms in a divorce or custody judgment can be modified in the future?
After you get your final divorce or custody judgment, either party can modify certain terms in the judgment in the future. Either party can request to modify the following provisions:
- Parenting time
- Child support
- Spousal support (divorce cases only)
How can a judgment be modified?
There are two ways to modify an existing court judgment:
- By agreement. If both parties agree on changes to the judgment, they can prepare a legal document called a Supplemental Judgment, that includes the changes to be made. Both parties must sign the document and then it needs to be filed with the court for a judge to sign it. After a judge signs the document, the change is final.
- Through a contested court case. If parties cannot agree on changes to a judgment, then either party can start a modification case by filing a set of forms with the court. During the case, the parties can still try to reach an agreement without having a court hearing. However, if the parties cannot reach an agreement during the case, then they will have to take their case in front of a judge and have a judge make a decision for them. Either the judge or a lawyer for the parties will put the decision into writing in a legal document called a Supplement Judgment. Once the judge signs the Supplemental Judgment, the change is final.
Who is the petitioner and who is the respondent in a modification case?
The person who was the “petitioner” in the original divorce or custody case will continue to be called the petitioner in the modification case. The person who was the “respondent” in the original case will still be called the respondent in the modification case—even if the respondent is the person who starts the modification case.
What is the standard for modifying legal custody?
If parties do not agree on a change in custody and they need a judge to decide the issue for them, a judge must find there has been a “substantial change” since the last judgment was entered in order to change custody.
If you and the other parent originally agreed to joint custody, but now one parent wants sole custody, the court will assume that there has been a substantial change.
However, if one parent was awarded sole custody, the other parent must prove that something significant happened since the last court decision to justify changing custody. This is a fairly high standard. It is more difficult to change sole custody from one parent to another.
What is the standard for changing parenting time or the parenting plan?
If parties do not agree on a change in the parenting time schedule or a change to the parenting plan and they need a judge to decide the issue for them, a judge will make a decision based on the “best interests of the child.”
A judge will consider the circumstances of the child and parents and decide if changing the schedule or parenting plan is best for the child. A judge will want to hear about things that have happened since the last judgment was entered. They are generally not interested in parties rehashing the past and talking about issues that occurred prior to the last parenting time decision.
What is the standard for modifying child support or spousal support?
To modify child or spousal support, there must have been a “substantial change” since the last judgment was entered. Usually the person seeking to modify the child or spousal support award must prove that one of the party’s financial situations changed significantly since the last judgment or order was made.
How do you start a modification case?
Starting a modification case is similar to starting an initial divorce or custody case. You will need to file a set of forms with the court, serve the other party, and wait for them to respond.
You must file these forms in your prior divorce or custody case, using the same case number. If the other party does not respond, you can request a default judgment.
If the party does respond, you will need to try to reach an agreement, or, if no agreement can be reached, you will need to have a trial.
What should you do if you are served with modification papers?
If you are served with modification papers AND you disagree with any requests in the modification paperwork, you must file a document called a Response within 30 days of the day you were served.
A Response provides the other party and the court notice of the contested issues and your desired outcome for the case.
On your response, you should clearly specify which issues you agree with and which you disagree with. You can also add counterclaims.
Finding court forms to start or respond to a modification case
The Oregon Judicial Department (OJD) has created a variety of family law forms that are available online for free. You can also obtain these forms from your local county courthouse for a small fee. You should be careful using court forms from other websites that are not Oregon-specific.
You can generate your court forms by using iForms (easiest option) or you can print out the PDF forms and fill them in by hand.
Obtaining a fee waiver to start or respond to a modification case
There is a court fee associated with starting or responding to a modification case. If you are low-income you can request that the court waive this fee. When you are ready to file your paperwork, you may complete an “Application for Deferral or Waiver of Fees.” You will have to provide some basic information about your household income. This form is available online here, or you can request a copy of the fee waiver form from the court clerks.
Serving modification paperwork
If you are starting a modification case, you must have the other party personally served with the paperwork.
If you are responding to a case, you do not have to personally serve the other party. You can mail your response to them by regular, USPS mail. You do not need to use certified mail or registered mail. After you mail your response, you should file a Certificate of Service with the court. You can use this form.
What happens during a modification case?
A modification case is very similar to an initial custody and divorce case. During the case, parties may need to do any of the following:
- Exchange documents with each other.
- Try to settle the case by participating in mediation, exchanging settlement letters, or having informal settlement conversations.
- Obtain temporary orders while the case is pending.
- Prepare for trial by gathering evidence necessary for trial.
- Go to trial if an agreement cannot be reached.
How The Commons Law Center can help you with your modification case
The Commons Law Center offers a variety of legal solutions that are designed to fit a variety of budgets. An attorney at The Commons can discuss your budget with you and talk to you about legal services that will fit within your budget. We offer the following services, which are listed in order of least to most expensive:
- Legal coaching — A lawyer can meet with you to “coach” you through your case. Through legal coaching, a lawyer can help you find and complete court forms, help you obtain documents from the other party, help with settlement, or help you prepare for your trial by teaching you the rules for trials and how to prove your case in court.
- Drafting court paperwork — as an add-on to legal coaching, a lawyer from The Commons can help you draft court paperwork. This might include a request for production of documents, a formal settlement letter, a motion for temporary orders, or a stipulated judgment.
- Hourly representation — lastly, a lawyer from The Commons might be able to represent you on an hourly basis. This is the most expensive option and the hourly rates start at $115 / hour for Tier 1 clients.