A motion to modify an existing court order requires a showing of a material change in circumstances: Let’s assume the court has made an order. That order may be a custody order or a support order or some other type of order. That order may be set forth in your divorce judgment or it may be set forth in some other type of court order. You want to modify that order. The first hurdle you have to get over is a showing of a “material change in circumstances” before the court is even going to consider your request to modify an existing court order.
Assume you and your spouse agreed on a certain amount of spousal support at the time of your divorce. Assume you agreed to pay your ex-spouse $1,000 per month in spousal support. Two months after the divorce judgment was issued, you decide that the $1,000 per month number is high and you want to modify it downwards. Your motion to modify is going to get dismissed at the very beginning of the hearing if your motion does not set forth facts that show a “material change in circumstances” since the divorce judgment was issued that justifies the court modifying the existing spousal support order. Perhaps you are no longer getting any overtime pay. Perhaps your ex-spouse got a promotion. Perhaps your ex-spouse moved in with a boyfriend or girlfriend. You need at least one material change in circumstance if you want the court to make a new support order.
Assume at the time of the divorce, you agreed that you would visit with the children on alternate weekends and the children would stay with your ex-spouse the rest of the time. Six months later, you decide you want the kids to spend more time with you. If you file a motion to modify child custody, you are going to have to satisfy the “material change in circumstances” rule. You will have to include in your motion some facts that show the judge there has been a material change in circumstances that justifies the court making a new child custody order. Perhaps your work schedule changed and you are now more available to care for the children. Perhaps you moved closer to your ex-spouse’s residence so that it is easier to share custody. Perhaps your ex-spouse’s new boyfriend or girlfriend is mistreating your children. You need some material change in circumstances if you want the court to issue a new child custody order.
There is an exception to the “material change in circumstances” rule. The exception has to do with a below “guideline” child support order. If the judgment of dissolution has a below “guideline” child support order, no change in circumstances is required for the court to increase child support to the guideline amount. Interestingly, if the divorce judgment has an above “guideline” child support amount, a material change in circumstances will be required to modify the amount downward to a guideline number.