What Is The Legal Standard Or Basis Needed To Modify A Decree?
The legal basis for a modification is a material change in circumstances which is a circumstance that had the court known about it at the time the original decree was entered, it would have resulted in a different order or different terms within the order. That material change in circumstances also have to rise to a level where they believe a change to the order would be in the minor children’s best interests. That’s a bare bones assessment of what that is. It’s a factual basis for any modification or any action in court. It’s based on the circumstances of the party at that time and the child or the children are affected by the order. It’s on a case by case basis. There is a lot more to this, there are sub-issues and facts to be addressed but that’s the general rule.
What Is The Process To Modify A Decree?
The process to modify a decree is to first determine whether or not you have facts sufficient to file a modification action and that would be a material change of circumstances or circumstances that would invite the court to change the order and that this order would likely be in the child’s best interests. If you reach that hurdle by going to the attorney and determining that you have the facts, then the process is to file a complaint for modification. It’s like an original divorce. It’s a complaint that alleges the facts that there has been a material change and that it would be in the children’s best interests that they change it as you are requesting and then prepare for relief that you are asking for specifically. That complaint would have to be filed to the other party in the suit. So if you are a plaintiff, you have to serve it on the defendant and once they receive that, they have a certain amount of time to answer.
Usually, its 30 days to file an answer to your complaint and you can also cross-complaint. So it’s important that you realize that you could be opening a can of worms by filing a modification but the only way you would know that is to talk to an attorney, go through your facts and see if this is a worthwhile endeavor and that’s why it’s so important to know and trust your attorney and to go through the process in a deliberate manner.
Can A Petition To Modify A Decree Be Challenged Or Opposed?
Like in any lawsuit, a party who brings a modification action would have to expect that the other side not only gets notice of a complaint for a modification but they have the due process rights to file an answer, a response or a plea and they also have the right to go to court and challenge this as nothing is automatic. If you’ve filed a complaint and serve it on the other side and they don’t respond, you could default them and then they would have given up their right to contest this. But if they give a timely answer to the complaint they absolutely have the right to have their day in court and challenge this and they can also file a cross-complaint asking that other changes be made.
They can say, I deny that the complaint they’ve filed is a material change in circumstances or is best for the children but I believe something else has happened and I want the following changes. So that can happen. But yes, both parties have the right to challenge the other one.
What Is The General Timeline For A Request For Modification To Go Through?
There is no general timeline for modification actions on how long they will take. I can give you the process time. You can file a complaint for modification after a decree is entered any time there is a material change in circumstances. It could be a month later. Then you have to make sure it’s actually a material change in circumstances that warrants a modification and that takes consultation with your attorney. Once you’ve filed the other side would have 30 days to answer. After that you have the right to do some discovery like in your original divorce case or paternity action, you would do discoveries. Discovery is interrogatories, requests for production of documents, you might want to schedule depositions, send out subpoenas. You just want to find and verify facts that are alleged and see if there are any defenses. Get all the facts that are necessary depending on what side you are on.
So there are some timelines that the court will look at. They also require parties to attend mandatory parenting classes at least here in Nebraska and it may require you to go through some type of mediation to see if you can go through your issues with a trained mediator but at some point the court is going to schedule it for trial depending on their schedule and the attorney’s schedule. So everybody has to be in general availability at the same time. A rule of thumb on if it’s a simple thing like child support, it just might be a few months but most actions take 4 or more months to get to trial. So let’s say you got a new job, you have custody of your children and you have to move to another state. I would try to get that on file right away and you can request for an expedited trial date under certain circumstances like a removal case where you can get the court to move it up but in most cases, you just have to wait your turn and bide your time for the court to have availability.
I’ve seen cases for modification take a year and that’s not typical, it’s usually much less than that but I would say that 4 to 12 months is a good range.
Why Should I Retain An Attorney To Handle A Modification To A Divorce Decree?
Everybody has heard that quote from Abraham Lincoln, and I do not know if it’s from Abraham Lincoln but he said that he who represents himself has a fool for a client. He didn’t originate that idea. It goes back a long time in history. When you are personally invested and emotionally invested in a case it’s probably not a good idea to act as your own attorney. You are not going to make the right decisions, you are not going to be able to separate those emotions or the vested interests that you have and do the right thing. The complexities and nuances of a case require basically some detachment and sober thinking. So I would always recommend that you have your own attorney and even if you are the smartest guy in the room you may not be the best person to represent yourself. In fact, in most cases, you are not going to do a good job.
I’ve been doing this for 25 years and they call it pro se litigant. I haven’t seen too many of them do a good job. I’m not saying it’s impossible but it’s much more difficult especially if the other side has an attorney. Even if they don’t, it just eases the process and it’s done properly. I’ve seen very smart people with very good facts on their side ruin their own cases because they didn’t know what to do or how to do it or the timeliness or how to present their case properly. So get an attorney and do it the right way.
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