Divorce is a life-changing event, and the terms laid out in a Divorce Decree have significant consequences on the lives of both parties and their children. Yet, as life progresses, times change, circumstances evolve, and the terms that once suited the children may no longer serve their best interests.
The reduction of child support or modification of parenting time is the most common form of changes or modifications of prior orders entered in divorce court. Aside from custody agreements and other child related legal issues, the parties are normally prohibited from going back to modify a previously entered Order of Court. This includes the terms of your Divorce Decree and the judgment for dissolution of marriage itself.
Custody agreements incorporated into a Divorce Decree can be modified based on the changing needs of the children and for other reasons. For example, under Illinois law, a previously ordered Allocation of Parental Rights and Responsibilities may be modified based on a “substantial change in circumstances.” However, amending or modifying portions of the Divorce Decree that do not relate to children can be a herculean task, and there are very short time limits to file for this request.
You will not be able to amend or vacate your Divorce Decree as a whole, unless you act very quickly to file a Motion to Vacate or a similar motion asking that the Court set aside the terms of the Divorce Decree. Typically, there is a 30 day window of time in which a party may request that any judgment entered by the Court be vacate, reconsidered, or appealed. Whether a party should file a Motion to Vacate, a Motion to Reconsider, or a Motion Modify all depends on the individual circumstances of your case.
Quick Answers
- Amending a divorce decree is commonly accepted for child custody and child support orders that were previously entered in divorce court; this normally occurs through a Motion to Modify
- If the Court failed to properly apply the law, you must file an appeal or a motion requesting the Court reconsider the order within 30 days of entry
- After 30 days, but before two years, of the judge executing the Divorce Decree: a higher standard is applied and the request to vacate is subject to greater scrutiny
- After two years of the judge executing the Divorce Decree: the parties are presumed to be prohibited from vacating any previously entered Court Judgment
Amending a Divorce Decree for Child Related Issues
In Illinois, post-divorce modifications to the Judgment for Dissolution of Marriage are permitted for issues of child custody and child support. One important step is to have a strong understanding of the terms of your parenting plan or custody agreement. Knowing your parenting plan and having a good understanding of your obligations will empower you to take control of your post-divorce life. If you fail to meet the terms of your obligations, you may be held in Contempt of Court.
Therefore, you must be able to make the necessary adjustments as the circumstances of the family evolve, such as the needs of the children. If what the terms say no longer serve the best interests of the children, if there are substantial changes in circumstances of the parties’ financials or employment, or if living situations change in time, these can all be reasons for amending the Divorce Decree. Employment changes also apply to this analysis. This can include a change in jobs or other financial changes that occurred subsequent to any previously entered child support orders or prior alimony orders.
Changes in the minor children’s schooling, or the minor child reaching school age, can also be a reason to modify the prior custody agreement. The previously ordered Allocation of Parental Rights and Responsibilities may modified based on a “substantial change in circumstances” pursuant to the Illinois Marriage and Dissolution of Marriage Act. Substantial changes in circumstances refer to significant alterations in financial, health, or living situations that impact the parties or their children.
The divorce process is not complete if requests to modify or amend remain pending. As such, the modification process itself is a part of the overall divorce process, and a modification request can delay the closure of the case. The process involves filing a motion for modification, serving notice to the other party, and attending a hearing to present evidence supporting the requested changes. Each of these steps is crucial for a successful modification and requires preparation and attention to detail. Navigating the modification process demands a thorough understanding of the legal requirements and procedures, and you are best served if you involve the assistance of a lawyer.
Defining Substantial Changes in Circumstances
Illinois divorce law allows for modifications based on a showing of “a substantial change in circumstances.” Substantial changes in circumstances involve significant alterations in financial, health, or living situations that impact the parties or their children. Examples of such changes include:
- Job loss
- Employment changes
- Alterations in Income
- Remarriage
- Relocation
- Major health issues
- Other life events
It is important to note that the Divorce Court will be hesitant to modify a divorce decree based on minor adjustments to the circumstances. For changes in circumstances to warrant a modification, the changes must “substantial” in nature.
The individual requesting the modification bears the responsibility of proving substantial changes in circumstances in order for the divorce decree modification to be successful. This means that they must provide evidence to support the claim of a substantial change, such as financial records, medical documents, school records, or other relevant materials. This can be a challenging task, as it requires a thorough understanding of the legal requirements and what constitutes a persuasive presentation of evidence.
Proving a substantial change in circumstances is often one of the most challenging aspects of the modification process. It requires the following steps:
- Gathering relevant evidence to present to the Court
- Clearly identifying and documenting the specific change in circumstances
- Demonstrating how the change has had a significant impact
- Preparing to present arguments in support of the modification
- Enlisting the help of an experienced attorney to protect your interests
Taking the steps above will help you prove that a substantial change in circumstances occurred and that granting the modification would serve the best interests of the children.
Mutually Agreed Upon Amendments
Prior custody agreements and other child related orders can be modified by mutual agreement, in which case a “substantial change in circumstances” need not be shown. Mutual agreement is another basis for modifying a divorce decree, regardless of the how the needs of the family may or may not have changed since the entry of the Court order being modified. In other words, modifications are simplified when there is no disagreement on the change needed. This occurs when both parties consent to the changes and submit the agreed upon changes to the court. The process typically involves:
- Reaching an agreement on new terms
- Preparing a petition for agreed modification
- Filing the petition with the court
- Serving the ex-spouse
- Obtaining a court date
- Court review and decision
Modification by mutual agreement is a collaborative approach that can be advantageous, as it allows both parties to be actively involved in the decision-making process and fosters a sense of cooperation. It also allows the parties to hold the power to control changes that apply as co-parents. Lastly, a mutual agreement saves the parties time, money, and stress.
However, obtaining mutual agreement can be difficult if the parties involved have a contentious relationship or disagree on the proposed changes. Reaching a satisfactory agreement heavily depends on effective communication and a showing of good faith by both parties. In some cases, engaging the services of a mediator in divorce can be beneficial in facilitating a productive dialogue and helping the parties reach mutually agreed upon amendments.
Errors in the Original Order
Errors in the original order or Divorce Decree can also be grounds for modification, such as typos in initials or demographic information of the parties or their children. Typical errors observed in an original divorce decree may include misspelled names, errors in birth dates, or inaccurate address listed on the original paperwork. Additionally, if there are legal errors or disputes regarding the intentions of the parties, an appeal or motion to modify the divorce judgment can be filed to address the errors.
Post Judgment Remedies in Divorce Cases
In Illinois, the terms in a divorce decree that may be subject to modification include child custody and visitation, spousal support, and child support. Each of these terms has specific criteria and requirements for modification. However, it is important to understand that separately there are options to request that the trial Court vacate or reconsider the orders entered. These requests are subject to a very strict timeframe and are normally referred to as “post judgment relief.”
Appeal of the Divorce Decree
Appeals and Motions to Reconsider are similar in the sense that they are each subject to a strict 30 day timeframe. Appeals are different than Motions to Reconsider in the sense that Motions to Reconsider bring the request back before the same judge that entered the order in trial Court, essentially asking the judge to reconsider her own decision. The appeal process causes a different Court to review the decision of the trial Court.
Motion to Reconsider the Divorce Decree
There are only a few legal reasons why a Motion to Reconsider would ever be granted pursuant to the caselaw in Illinois. The most common reason for a Motion to Reconsider is due to a “misapplication of the law,” which may include the Judge’s misinterpretation of the law or procedural errors caused or allowed by the Court. Another basis for the Motion to Reconsider is a change in the law that occurred after the date of the evidentiary hearing, but that basis is rarely utilized. Another basis for a Motion to Reconsider is newly discovered evidence that was inaccessible at the time of trial. These grounds are limited because it requires the party seeking reconsideration to prove they did their own due diligence to prevent the problem from occurring. Lastly, fraud caused by one of the parties is a basis to file a Motion to Reconsider the Divorce Decree.
Other Post Judgment Motions
In addition to the Motion to to Reconsider, you also have the option to file a Motion to Vacate or a Motion to Amend your divorce decree. Another post-judgement motion is called a Motion to Clarify. This is a device utilized when the Court needs to provide clarity to an ambiguity in the Court’s decision or order. When filing a post judgment motion, your timeframe to file a Motion to Reconsider is 30 days following the entry of judgment. You will have to satisfy a different set of rules if your post judgment motion is filed after 30 days from the date of entry of the order or judgment sought to be reconsidered. After a period of two years following the entry of a Court order or judgment, you are typically prohibited from seeking any post judgment relief.
Navigating the Legal System
For those unfamiliar with the procedure of amending or vacating a divorce decree, navigating the legal system can be intricate and time-consuming. This can be particularly challenging when attempting to navigate the legal system on your own and without the assistance of an attorney. Engaging the services of an experienced divorce attorney can help streamline the process and ensure that your rights and your children’s rights are protected throughout the legal process.
Summary
Amending a divorce decree can be a complex and challenging process, but with the right information and support, it is possible to successfully modify the terms of your divorce decree. The main reason for divorce decree modification is to better reflect your current circumstances and the best interests of the minor children. These adjustments are often necessary to create a fair and supportive environment for everyone and to allow you to have control over your post-divorce life.
As you embark on the journey to amend your divorce decree, remember that persistence, preparation, and the support of an experienced attorney are key to achieving a successful modification. Attorneys experienced in family law possess the knowledge and expertise necessary to navigate the complex legal landscape of divorce decree modifications. Their expert advice and representation can help ensure a fair and favorable outcome in the modification process. This helps reduce the stress and uncertainty associated with navigating the legal system on your own.
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