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Can I modify my New York Divorce?
October 31, 2019
Can you modify a Divorce Judgment?
There are many times when you may modify marital agreements but always check with a lawyer before attempting to do it yourself because you may only do so if circumstances allow or permit. As to equitable distribution of real property generally speaking you may not modify this type of agreement or judgment unless both parties consent to modify the underlying Agreement or judgment of divorce. However, you can possibly move for modification under very limited and narrow circumstances, such as a showing of blatant fraud or extreme duress.
Apart from equitable distribution, the terms of a martial agreement and judgment of divorce may indeed be modified under certain circumstances.
First, if by the terms of the agreement itself, it is modifiable, then you may modify it on consent so long as the execution of the modification document is performed in accordance with the rules of law requiring acknowledgment of the document in a manner prescribed by New York Law.
Or, if you cannot modify it on consent you may petition the court for modification so long as you can demonstrate enough grounds to do so. For instance, if the Agreement says either party may petition the court for additional custodial time in three years from the date of the execution of the agreement without a showing of a change in circumstances generally the courts will allow that petition to move forward.
While Child custody agreements are generally binding as per the terms of the agreement or divorce judgment, except upon a showing of a change in circumstances, you may apply to the court to modify a custody agreement if you can show a change in circumstances and that the best interests of the children are best met through modification. If one or both spouses wish to relocate with the child, that would be a change in circumstances. If one party is abusing the child, then that would also constitute a change in circumstances warranting a petition for modification of the child custody order or judgment,
In the alternative, the parties can modify the agreement on consent between themselves so long as the document is executed and acknowledged in accordance with the Domestic Relations Law. If there is a Family Court Order that needs to be modified and you have an agreement with the spouse or parent, then be sure to go to Family Court to have the agreement so ordered by the court.
As far as modification of the terms of a child support or spousal support (maintenance) order or judgment, this may be possible if one or the other of the spouses becomes unable to work. Further the increased needs of the child might serve a basis for an upward modification petition.
But you must show a substantial change in circumstances to modify a support order or the court might dismiss your petition.
Do not make the mistake of assuming that because you lost your employment you no longer have to pay under the Order of Support of Divorce Judgment. Any money that you owe your spouse due to your default under the Order remains owed to the other party even after you file for a modification of your obligation to perform on the underlying order or Judgment. If you are in fear of not being able to meet your support obligation the best thing to do is make an application for modification before you fall into arrears. If you fall into arrears, it is unlikely that the court will waive those arrears unless you can show why you could not file sooner. Even then, the likelihood of a Court waiving arrears is rare.
By: Lisa Beth Older
Your New York City Divorce Lawyer