What should I know about modifying settlement agreements in family law cases?

Contents

• What is a settlement agreement?

What is a settlement agreement? 

In many divorces, the parties settle all the issues by a written agreement, which is reviewed by the court. If an acceptable agreement cannot be reached regarding child custody, only the judge can decide. But if financial matters cannot be settled by an agreement, the couple will need to have a trial by either a judge or a jury. Only a small percentage of divorce cases go to trial in Georgia.

In Georgia, all support, custody, and property division issues must be settled either by agreement of the parties or by trial before the divorce is granted. Evidence of wrong-doing is relevant to alimony and the division of marital property. Child support and alimony are only affected by a party's financial ability to pay and the need of the other.

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Contents

• Can I make changes to a settlement agreement?
• What are the different types of settlement agreements that can be modified?

Can I make changes to a settlement agreement? 

The court can change the agreement if it is very unfair to one party or to the children. Usually, a court will change an agreement only if the child's or children's best interests are not met. Courts are most concerned about the welfare of the children. Very often, the financial circumstances of the mother, father, or both change over the years - after the divorce is final. The changes may mean that the alimony or child support needs to be modified.

In most cases, child support provisions can be changed only once every two years. Any alterations must be based on a substantial change, upward or downward, in the financial condition of either spouse. 

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What are the different types of settlement agreements that can be modified? 

• Alimony: Alimony can be changed when the spouse who gets alimony lives continuously and openly in a sexual relationship. At the time of divorce, parties can agree to waive or give up their future rights to change the amount of alimony. Such a waiver is probably unwise. Unexpected changes may occur in the future. For instance, the right to alimony ends if you remarry.

• Child custody: To change child custody, courts look for a change in the child's or parent's life that "materially" affects the welfare of the child. The change can be positive or negative. If the reason for the change is based on a parent's circumstances, you must also prove that the change affects the child, not just the parent. Also, the reason for the change should be something that has occurred since the final order was decided. It is possible to base a change of custody case on something that existed at the time of the original court case. However, you would have to show that the condition has worsened or improved "materially" since the original order was decided.

When a child is 14 years old or older, the child can tell the court which parent he or she wants to live with. In this case the court may consider the child's choice, but will not necessarily do what the child wants. The court will consider the child's choice as “very important”, but will decide custody based on what the court thinks is in the best interests of the child. An election by a child 14 or older cannot be considered as a "material change of circumstances" more than once every two years. 

• Child support: Parents cannot waive the right to modify child support because it is a right that belongs to the child or children. Child support orders can be changed based on a change in the income of either parent. Child support can be changed based on the changing needs of the child. Sometimes if a child support enforcement agency is involved, either parent has the right to have the child support order periodically reviewed without going to court. Sometimes a parent can request a change in child support when there are major changes to the child support laws.

• Visitation: Visitation can be changed if it is in the best interests of the child. You do not need to prove that there has been a "material" change in the child's life or a parent's life that adversely affects the child. Once the court grants a modification of visitation, you have to wait 2 years to ask the court for another change. However, if you can prove that a material change of circumstances is the reason for the change, you don't need to wait 2 years.

Modification of a court order in family law cases can be a complex process. If possible, you should discuss your case with an attorney or hire an attorney to represent you.

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