As described in our previous post, Should my Child Support Change?, there are two types of court orders which always merge into the Judgment, meaning they can be modified if there is a material and significant change in circumstances: child custody and child support. The Court retains jurisdiction over provisions relating to child custody and visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. This means that if there is a change in circumstances which has caused your children to be put in an unsafe situation, you can bring that change to the court’s attention and potentially obtain a change in the custody and parenting plan orders. If the change is an emergency situation, then you can request that the court immediately transfer custody or limit parenting rights by filing an Emergency Motion along with an Emergency Affidavit.
Whether or not an alimony order can be modified post-divorce depends first on whether the order merged or survived. Many decisions in a divorce agreement, such as property division, survive the Judgment and cannot be changed. When reaching an agreement, spouses can decide whether or not to make alimony orders or waivers permanent by surviving them or merge them into the Judgment. If merged this means that such orders can be modified if there is a material and significant change in circumstances. Merging alimony orders is more typical because no one knows exactly what could change in the future. If the order merged, then the duration of an alimony order may be modifiable under The Alimony Reform Act of 2011. We have explored this possibility at length in our previous post: Modification under the Alimony Reform Act of 2011: Updated Flowchart . In addition, under both the current law and the new law (which takes effect on March 1, 2012), alimony orders that merged can be m
In our last post we explored reasons that there may be some inequities post-divorce that cannot be remedied. Many decisions in a divorce agreement, such as property division, survive the Judgment and cannot be changed. However, there are two types of court orders which always merge into the Judgment, meaning they can be modified if there is a material and significant change in circumstances: child custody and child support. The Court retains jurisdiction over provisions relating to child custody and visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. Although typically paid to the custodial parent, child support is also for the benefit of the child, not the parent. Therefore, you cannot give away your child's right to seek greater child support if there is a material and significant change in circumstances. In order to mo
While our last post explored what happens when your ex violates the Divorce Judgment, what happens if everyone is following the agreement perfectly, but one of you has clearly got an advantage? A common complaint that potential clients express to us is a dissatisfaction with their prior agreement or judgment because their ex-spouse seems to be doing very well. They might have a bigger house, or take a lot of vacations, or have a really nice car. In some cases this is a legitimate indicator that a support order may not be fair, and in those cases a Complaint for Modification may be warranted (our next few posts will address when this is appropriate). However, many times this imbalance reflects something which can’t be fixed by a Complaint for Modification. In some cases exes have not fully accepted the divorce yet, and comparing your lifestyle to your exes is an indication that you haven’t yet moved on. Even with a well-crafted agreement your life is unlikely to turn out e
Unfortunately, sometimes the end of a case isn't the end of a dispute. Often two people who just don't get along anymore end up back in court to resolve an issue that arises after the divorce case has ended. Whether the case ended with an agreement (usually called a "Separation Agreement" or a "Divorce Agreement") or with a trial, there will be a judgment dividing the assets and liabilities of the former spouses, and defining any support or other obligations owed to each other, or to any children. This Judgment can be amended or enforced as necessary and dependent on certain circumstances. Our next series of posts, entitled Post Divorce Problems, will address some of the common reasons that you could end up back in court, post-judgment. In some instances, ex-spouses return to court when one party fails to follow the judgment. When the judgment is clear (and unambiguous) as to what that individual is supposed to do, or not do, and that individual viol
On your Federal Income Tax Return you can claim an exemption for each qualifying child, which for the tax year 2011 will result in a $3,700 per dependent credit off of your taxable income. Depending on your tax bracket this could save you as much as $1,295 in federal taxes. But if you are separated or divorced and filing separate federal income tax returns, who gets the exemption? First of all, you can't both take it. Only one of the parents can use the exemption for each child on their return. If you both claim a child, the IRS will reject your return and send you a letter indicating that you must amend. So which one of the parents gets to use the exemption? Pursuant to IRS Publication 501 , the IRS considers a child of divorced or separated parents in most cases to be the qualifying child of the custodial parent only. The IRS defines custodial parent as "the parent with whom the child lived for the greater number of nights during the year. The other parent is t