Our Divorce is Over, but Life Circumstances Have Changed. Now What?
If you used Mediation or Collaboration to work out the details of your divorce contract, you will be less likely to face ongoing or serious conflict with your former spouse. That is because these processes are client-centered and allow the parties to determine their own outcome, so they are able to create an arrangement both can live with.
That being said, life still happens, through no fault of any one person necessarily. Often years – or even months – after a divorce, life circumstances shift, or somebody decides the plan isn’t working like s/he thought it would. One party may feel s/he struck a bad bargain and wants to make a change.
Unfortunately, under the law, “second thoughts” are generally not good enough to warrant an alteration in the original agreement. Legally, changes can only be made (most of the time) if there has been a material or significant change in circumstances.
Types of Post-Divorce Changes
Let’s start with the technical stuff. In the case of a negotiated settlement (such as Mediation or Collaboration), the agreement usually either:
- merges in its entirety,
- survives in its entirety,
- merges in part and survives in part.
Merging means that the parts of the agreement that merge will fall under the jurisdiction of the judge and can be subject to modification later—either by agreement or by Court order.
Surviving means the agreement, or designated parts of it, becomes an independent contract between both spousal parties, and can only be altered in rare circumstances.
Most divorce agreements are set up to merge in part and survive in part.
The aspects that usually survive are property division and allocation of debt responsibilities. This allows both parties to move forward with the assurance that they know what will belong to them.
The parts that typically merge often relate to children, ongoing support, and insurance. If your workplace no longer offers health insurance, for example, or if you get a new job or the children’s needs change, a modification in spousal/parental support, health insurance obligations, or the parenting plan is likely in order. The guiding principle if the issue concerns the children, for instance, becomes what is in their best interest. These aspects are usually kept under the jurisdiction of the Court.
What Kind of Post Divorce Changes Can or Should Be Made?
Often parenting plans or support amounts are what need to be adjusted.
Sometimes parents try to make these changes between themselves to avoid the expense or inconvenience of getting a third party involved. For example, you may agree with your former spouse to make a temporary change in the parenting plan, such as moving your night with the kids from Wednesday to Thursday for six weeks while they attend CCD classes. Or, if you are obligated to pay $300 in child support, you may starting sending $500 a week if your income increases, or get permission from the other parent to only send $100 a week if you lose your job.
But unless these changes are formalized by the Court in the agreement itself, they are not binding or enforceable. For example, if the parent who agreed to accept only $100 a week while you were without a job changes his/her mind and asks for retroactive pay, you would be obligated to catch up on the missing $200 for each week you did not pay it, unless the change had been approved by a judge.
What Do We Do If We Need to Change Our Divorce Agreement?
The most affordable and client-friendly method of addressing changes in circumstances would be through Mediation or Collaboration, rather than through litigation. Both parties would need to bring their updated financial documents or new schedules to the table, and exchange any other relevant information.
The focus this time around would be much narrower, since only the aspects that need to be modified would be revisited. That means the process will likely be faster and less expensive than it was the first time around.
Once we work out the new details and a new or Modification Agreement is signed, you would need to get a judge’s approval so that it will be enforceable going forward. In some cases, you can even mail in the paperwork and have a judge approve it administratively.
Can We Prevent Needing to Make Future Changes? No, but We Can Make Them Easier.
When I set up agreements with my clients, I try to think of any possible scenario they might face at some point so I can build a solution in to the contract. Sometimes they roll their eyes at me and feel that level of detail is unnecessary, since they are getting along. My response is that these efforts are a fallback if they start to disagree later on.
Certain life changes are predictable (salary changes) or even inevitable (the kids growing up). The wise thing to do is to build certain provisions for future discussions in to the divorce contract. If your child is only five years old right now, for example, you would not be able to know that 12 years down the road, s/he might be brilliant and want to apply to Harvard. So we could stipulate that college tuition is a topic that will be revisited at a future time.
We could also build in to the contract that both parties will exchange financial documents every one to two years, and support could be adjusted if circumstances have changed. Parenting plans are another area that will likely need to be tweaked as the years go by, due to changing work schedules, kids’ new activities, and changes in other life commitments. These should be reviewed periodically, also.
If you have a system in place for addressing the inevitable changes, the process is easier. Court approval is still necessary in most cases, but if you have negotiated the changes, the approval is usually straightforward.
The important thing is to try to set up your original divorce contract to provide you with peace of mind so that if something does happen (a pay cut, job change, or discontinuation of health insurance), you are not stuck.