Modification, Generally

Generally, the terms and obligations of a court's judgment or order are not subject to modification after the fact, regardless of whether the terms of said judgment or order were previously agreed upon by the parties via settlement agreement. In the arenas of family law and domestic relations actions, however, the courts have certain continuing powers to modify the terms and obligations of a judgment as it relates to child custody, child support, and alimony. How and when the courts may modify these terms are often subject to very specific (and often byzantine) requirements that require precise attention to detail and knowledge of the underlying law to effectively pursue. As well, keep in mind that the parties can always voluntarily agree to deviate from the terms of the relevant court order (or even move to have them formally modified by the court), regardless of whether such deviations or modifications would normally be modifiable by the court on its own.

Modification of Custody and Visitation

As discussed in the Custody section, custody of a minor child is primarily split into two categories: (a) legal custody (i.e., who has authority to make decisions affecting the minor child); and (b) physical custody (i.e., where does the minor child reside and what is the visitation schedule with the other parent). Physical custody is further broken down into the concepts of “primary physical custodian” (i.e., with whom the minor child primarily lives) and the “visitation schedule” for the non-physical custodian (i.e., the parent who is not the primary physical custodian and typically the party obligated to pay child support). The distinctions between these categories primarily come into play during modification actions, as visitation rights (i.e., the non-physical custodian's visitation schedule) may be reassessed and modified as a matter of right once every two (2) years, whereas overall custody decisions (i.e. which parent will final decision-making authority and/or primary custody of the child) may only be modified upon a showing of “a change in any material conditions or circumstances of a party or the child.” As such, while a parent may seek a modification of the parents' visitation schedule with the child without having to demonstrate that there have been significant changes in the parents' and/or the child's life that form the basis of the requested change, such relief may only be sought once every two years. Conversely, a parent may seek a change in the overall custody arrangement (i.e., a change in who has final decision-making authority, who is the primary custodian, and/or who is obligated to pay child support to whom) at any time, provided that they can demonstrate a substantial and material change in the child's life and/or one or both of the parent's lives. While the facts and circumstances of every case are different, potential “material changes” may include, but are not necessarily limited to the following:

  • The relocation of one of the parents (and potentially the child) to another city or state;
  • A minor child's request to change the custodial and/or visitation arrangement;
  • Where one party has become unfit and/or unable to care for the minor child;
  • Where there has been a significant improvement (or decline) in the child's and/or a parent's standard of living; and
  • Where one party is an armed services member who is to be deployed in the near future.

The most important thing to remember in any custody/visitation modification action is that the judge will be, in effect, making a new custody arrangement for the parties. As such, if the parties cannot agree, the Court will be forced to redetermine what arrangement would be in the “the best interests of the child,” based on any and all relevant Custody Factors. Accordingly, the most important thing you can do to prepare for pursuing (or defending) such an action is to hire an attorney who can help you navigate this nebulous area of law and direct you in documenting anything and everything that might be relevant to the Court's decision.

Modification of Child Support

Generally, there are three (3) different reasons to seek an upward or downward modification of child support:

  • A substantial change in either parent’s income or financial status (including an involuntary loss of income);
  • A substantial change in the needs of the child; or
  • The non-custodial parent has failed to exercise Court-ordered parenting time/visitation (or they has exercised a greater amount of visitation than was provided by the Court's order).

In a child support modification action, the burden generally lies with the party seeking the modification to successfully prove the existence of one or more of the above reasons for modification and that the modification is fair and warranted. Where the modification is based upon a substantial change in the needs of the child(ren) and/or one or both of the parent's financial status/income, it will be necessary for the party seeking the modification to make a comparison of the child(ren)'s current needs (and/or the parent's respective current gross income or financial status of the parents) against the child(ren)'s needs (and/or the parent's respective gross income or financial status) at the time the Order which is being modified was entered. Generally, each parent may only file a modification action based on changed financial status/income and/or children's needs once every two (2) years. This two-year prohibition does not apply, however, where the new modification is based upon: (a) a non-custodial parent’s failure to exercise Court Order visitation (or their exercise of a greater amount of visitation than ordered); or (b) an involuntary loss of income by either parent. Note that not every reduction in income is an “involuntary loss of income” under Georgia law; rather, an involuntary loss of income is defined by Georgia statute as: (i) involuntary termination; (ii) extended involuntary loss of average weekly hours; (iii) loss of health; (iv) involvement in an organized strike; or (v) any similar involuntary adversity resulting in a loss of income of 25% or more of the party's prior income. If any of these events have occurred in your or the other parent's life, it is extremely important for you to communicate with a qualified family law attorney who can advise you as to your rights and obligations under these changed circumstances.

Modification of Alimony

As discussed in the Alimony section, either former spouse may file a modification action to either increase or decrease the alimony obligation/award. In such a situation, it is the filing party's obligation to prove that there has been a substantial change in the income and financial status of either former spouse to warrant a modification (i.e. there has been a significant change in the receiving party's needs and/or the paying party's ability to pay). Generally, lump sum alimony is not subject to modification; rather only where a party has been ordered to pay alimony in monthly, annual or other periodic or in-kind payments is alimony modifiable. As well, alimony obligations/awards generally terminate upon the death and/or remarriage of the party to whom the alimony is owed. As with most items related to divorce, however, whether your specific alimony obligation/award is modifiable and/or terminable will depend on the specific terms of your alimony order. As such, it is critical to have an experienced and capable family law attorney negotiating, drafting, and reviewing your alimony awards/obligations so as to fully protect your interests, whether you are the party obligated to pay alimony or the party entitled to receive alimony.

Attorney's Fees & Attorney's Fees Awards in Modification Actions

Hiring an attorney that is well-versed in family law and the contempt and modification process is critical to obtaining an order that is favorable to your side, workable in your life, and also realistic for the parties (and their children and other dependents). Many individuals, however, have reservations and concerns regarding the amount they might be forced to spend on hiring an attorney, and thus choose to either represent themselves or otherwise forgo protecting their rights altogether and simply never file an action against the other party (or contest an action filed by the other party). For parties that elect to represent themselves, many realize too late that there is simply too much at risk to go it alone, and often settlement agreements, decrees, and orders negotiated, drafted, and/or litigated by self represented parties fail to address multiple critical issues at the necessary level of detail or otherwise do not fully protect their rights and interests. On the other end of the spectrum, parties who choose to simply give up pursuing an action for contempt/modification due to concerns over costs are letting the other party take advantage of their financial situation to their own gain. As such, it is critical that you hire an attorney to protect your rights. There is no reason to proceed without an attorney, particularly as there are several statutes under Georgia law that allow you to seek to have the other party made responsible for at least a part – if not all – of your attorney's fees (i.e., the other party has to pay your attorney or at least reimburse you for some (if not all) of the attorney's fees you have already paid). In particular, for both contempt and/or modification actions, there are several statute-based grounds to seek an award of your attorney's fees in Georgia for either prosecuting or defending the same. While your entitlement to an award of attorney's fees will depend heavily on the facts and circumstances of your case, such as the parties' conduct in attempting to resolve the dispute (bad faith, unnecessarily litigious, etc.) and/or a disparity in the parties' relative financial resources, it is always wise to speak with your attorney early in your action about creating a strategy for recovering your attorney's fees from the other side.

Atlanta and Augusta Family Law Firm for Healthcare Providers and their Family Members

Hamil Little’s attorneys have extensive experience in family law and domestic relations actions in Georgia's courts and otherwise guiding and assisting healthcare providers, professionals, businesspersons, and/or their family members in avoiding legal pitfalls associated with their personal lives, relationships, and family. Our law firm has offices in Atlanta and Augusta, Georgia. Contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta) to schedule a confidential consultation.