Welcome to FreeDivorce.com.
Christina: This is Christina.
Ed: This is Ed. Today we are going to talk about various issues you need to know about when dealing with an FL-300 motion to modify an existing court order.
Christina: Ed, what if I want to file a motion to modify child support or spousal support because I suspect my ex-spouse is earning more money, but I’m not sure how much more money. Is there a way to find out how much my ex-spouse is earning before I file my FL-300 motion?
Ed: Yes, there is. Let’s assume you have been divorced for a couple of years. You think your ex-spouse is earning more money, but you are not sure how much more. Your spouse won’t tell you how much they are now earning. You are also earning more money. You can’t run a support calculation to find out if the amount of support should go up or down because you don’t know exactly how much your ex-spouse is earning. You don’t want to file a motion to modify support, only to find out that your spouse is earning less than you thought and then have the court issue a support order that is worse than the existing order. What do you do? You can send your ex-spouse a “Request For Production Of An Income And Expense Declaration After Judgment”, which is FL-396.
Christina: What does the FL-396 form do?
Ed: The FL-396 is a Judicial Council form that you can mail to your ex-spouse once per year after a divorce judgment has been entered. The FL-396 requires your ex-spouse to complete a new Income & Expense Declaration, which is FL-150, and send you the completed FL-150. In addition, the FL-396 requires your ex-spouse to give you copies of their most recent state and federal income tax returns. Your ex-spouse is required to send you his or her completed FL-150 and the tax returns within 35 days.
Christina: What if I send my ex-spouse the FL-396 and they ignore it?
Ed: If your ex-spouse fails to send you his or her completed FL-150 and tax returns within 35 days, you can send his or her employer a “Request For Income And Benefit Information From Employer” form, which is FL-397.
Christina: Can I find blank versions of the FL-396 and FL-397 in our Court Forms Database that I can fill out and print?
Ed: Both forms are in our Court Forms Database. Using the FL-396 and FL-397 is a way you can see how much your ex-spouse is earning and then decide if it makes sense for you to file a motion to modify child support and/or spousal support. When you use the FL-396, you will need to attach a copy of a blank FL-150 to the form before you mail the form to your spouse. You can find a blank FL-150 that you can print in our Court Forms Database.
Christina: How do I serve the FL-396?
Ed: You cannot mail the FL-396 to your ex-spouse yourself because you are a party to the action. Have a friend that is over 18 year old mail the FL-396 and then fill out the “Proof of Service By Mail” section that is on page two of the FL-396.
Christina: Is there another way I can get information about my ex-spouse’s income if I file an FL-300 motion to modify support?
Ed: Yes. If you file an FL-300, then you also have another avenue for obtaining the information you may need to win your motion. After you file the FL-300, you can use formal“Discovery” to obtain all kinds of information from your ex-spouse and/or from third parties. “Discovery” refers to forms and procedures that include the following: 1) Request For Production of Documents; 2) Request For Admissions; 3) Interrogatories; 4) Depositions; and 5) Subpoenas. To learn more about formal discovery and how to draft your own discovery documents using our discovery documents templates, watch our earlier series of videos on Discovery.
Christina: If I file an FL-300 motion, what is one of the key things I need to allege in my paperwork as grounds for my motion?
Ed: 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.
Christina: Can you give me some examples of “material changes in circumstances” so I can better understand this concept?
Ed: Sure. 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” that have occurred 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 a girlfriend. You need at least one material change in circumstance if you want the court to make a new support order.
Here’s another example. Assume at the time of the divorce, you agreed 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.
Christina: Are there any exceptions to the “material change in circumstances” rule?
Ed: There is an exception. 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 down to a guideline number.
Christina: So, if I want to file a motion to modify an existing court order, how do I go about filling out the FL-300 form?
Ed: Completing and filing the FL-300 to modify an existing court order is almost the same as completing and filing the FL-300 when you want to obtain temporary court orders at the beginning of the divorce process. Our website includes a series of videos regarding how to process a contested divorce. That series of videos includes various videos on how to obtain temporary court orders at the beginning of the divorce process, such as temporary child custody orders and temporary support orders. In those videos on how to obtain temporary orders, we go into a lot of detail regarding how to fill out and file the FL-300. Rather than repeat all of that information in this video, we are simply going to tell you to watch that earlier video. However, there are a few differences between an FL-300 motion for temporary orders and an FL-300 motion to modify an existing court order.
Christina: What are the differences between the two types of FL-300 motions that I need to know about if I am filing a motion to modify an existing court order?
Ed: First, you need to know that there is only one version of the FL-300 form. You use the same FL-300 form whether you are filing a motion for temporary court orders at the beginning of a divorce or filing a motion to modify existing court orders. There are just a few differences in terms of what you need to do if you are using the FL-300 to modify an existing court order as opposed to using the FL-300 to obtain temporary orders.
Christina: Is one difference the “material change in circumstances” rule?
Ed: Yes. As we mentioned earlier, if you are seeking temporary orders, obviously there is no need to include in your FL-300 a description of any changed circumstances that have occurred since the existing order was made, because there are no pre-existing orders.
Christina: What is another difference between the two types of motions?
Ed: If you are filing an FL-300 to modify an existing court order, you must attach a copy of the order you want to modify as an exhibit to your FL-300. If you don’t attach a copy of the existing order that you want to modify, the court clerk will reject your FL-300. If the existing order you want to modify is part of your Judgment of Dissolution, you can attach the entire judgment as an exhibit to your FL-300.
Christina: What other differences are there between the two types of motions?
Ed: If you are filing an FL-300 to modify a post-judgment spousal support order, then you will have to fill out an extra court form. If you are seeking to modify a temporary spousal support order that was issued before entry of a Judgment of Dissolution, all you need is the FL-300 and your Income & Expense Declaration. However, if a Judgment of Dissolution has already been entered, since any post-judgment motion to modify spousal support requires the court to complete an analysis of all of the spousal support factors set forth in Family Code section 4320, you will have to complete and file an extra court form known as, “Spousal Or Partner Support Declaration Attachment”, which is FL-157. The FL-157 form addresses the Family Code 4320 factors. You can find the FL-157 in our Court Forms Database.
Christina: Where do I file my FL-300 motion?
Ed: An FL-300 to modify an existing court order should be filed at the same court that issued the order you want to modify. File the FL-300 with the court in the county that issued the order. Use the same caption and case number that is on the court order that you want to modify. Make two copies of the FL-300 and take the copies with you when you go to file your paperwork with the court clerk.
Christina: What happens when I file my FL-300 with the court clerk?
Ed: When you file your FL-300 with the court, the court clerk will give you a hearing date. The hearing date will be anywhere from one month to three months in the future. The clerk will keep the originals of your paperwork and give you back two filed-endorsed copies. One set of copies is for your records. The other set is to be served on your spouse.
Christina: When you watch our earlier videos on how to fill out the FL-300 in connection with applying for temporary court orders, you may be tempted to just watch those videos that deal with the particular type of order you are trying to modify. We suggest you watch all of the videos that pertain to “Obtaining temporary orders” because there are all kinds of information in those videos that you may find useful in connection with your motion to modify a court order. Those videos will explain all about: 1) Filing the FL-300 with the court; 2) Service of the FL-300; 3) Attending the FL-300 hearing, and 4) How to draft the Findings And Order After Hearing.
Ed: I need to point out that there can be a difference between the way you serve the FL-300 if you are seeking to modify an existing court order, instead of using the FL-300 to obtain temporary orders at the beginning of a divorce case.
If you are using the FL-300 to obtain temporary orders, and your spouse has made an “appearance” in the action, you can serve the FL-300 by mail and then fill out the “Proof of Service By Mail” form, which is FL-335. However, if you are using the FL-300 after a divorce judgment has been entered and you want to modify an existing court order, then the FL-300 may have to be “personally served” on your ex-spouse. Sometimes, the FL-300 can be served by mail. It depends on the type of order you are trying to modify.
If you are trying to modify a child custody order, a child visitation order, or a child support order, then you can serve your FL-300 by mail. However, when you fill out your “Proof of Service By Mail form, FL-335, you will need to attach to the FL-335 another court form that verifies your ex-spouse’s address. That additional court form is called, “Declaration Regarding Address Verification – Post Judgment Request To Modify A Child Custody, Visitation, Or Child Support Order”, which is FL-334.
If your FL-300 seeks to modify a court order that is not a child custody, visitation, or child support order, then the FL-300 must be personally served on your ex-spouse. If your ex-spouse had a lawyer representing him or her during the divorce, you can’t serve the lawyer. Post-judgment FL-300 motions must be served on your ex-spouse, not his or her lawyer. If you need to personally serve your FL-300 because your motion seeks to modify an order that is not child custody, visitation, or child support order, then you can hire a process server or you can have a friend that is over 18 years of age personally hand your ex-spouse a filed-endorsed copy of your FL-300, together with a blank “Responsive Declaration To Request For Order”, which is FL-320, and then fill out the “Proof Of Personal Service” form FL-330. All of these forms can be found in our Court Forms Database.
Christina: In the next series of videos, we will explain how to obtain Domestic Violence Restraining Orders.