Can I Modify My Divorce Agreement?

Lawyers at the table

When it comes to modifying your divorce agreement, there are many variables involved. Sometimes the changes are no big deal and can be made easily and quickly (especially if they are small details). Other times making changes will require more effort and/or cannot ultimately be changed at all.

Let’s take a look at a few scenarios and general guidelines.

Nothing with Children is Permanent

When talking about children, saying you have “permanent orders” is a misnomer. As a rule, anything relating to children is modifiable. This is important because the Court is always most concerned with what is in the best interest for the children. If, after the divorce agreement is signed, one parent decides to start using drugs and joins a cult, obviously the custody agreement needs to be modified so that parent has less time with the children.

(For quick clarification, Colorado law doesn’t technically use the term “custody” but I use the word because that is how the general public typically understands and relates to parenting time.)

Along the same lines, if there is a small child involved, the custody arrangement will very likely change as the child ages. Very young babies need to spend more time with their primary parents, but as the child becomes more independent he or she can transition to having more time with the other parent.

Now, let’s talk money: if father is paying mother $500 per month in child support and suddenly wins Powerball, you can bet the Court is going to expect him to pay more in child support. And it would go the other way, too: if mother wins Powerball, she may suddenly find herself paying child support to father (depending on their arrangement).

Minor vs. Major Changes in Parenting Time or Payments

To go from two overnights a week to three overnights a week with one parent or the other in most cases will not be a big change or a big hassle. You just have to demonstrate it’s in the best interests of the child.

To change the primary custodian from one parent to the other without an agreement, however, will require more steps: the moving party must prove that the present environment endangers the child either emotionally or physically. As you can imagine, that it is a more difficult task and will more likely result in a contested Court proceeding.

As far as modifying child support, the changes have to be substantial, which is defined as a minimum of a 10% change. So, if child support was $500 per month and the new calculation would adjust it to $525 per month, the Court would not make the change because it is less than 10%. And it should also be noted that in addition to being substantial (greater than 10%) it should also be ongoing; a one-time change would not justify a modification.

Adult Issues: Maintenance & Division of Property

First let’s look at maintenance, which is done in one of two ways: most commonly, it’s done “normally,” meaning, if you can show a substantial and continuing change of circumstances that renders the original Orders inequitable, you can move for a modification.

Colorado has a formula for maintenance which is not binding on the Court (unlike the formula for child support, which is binding on the Court). Many people think, “Why should my former spouse benefit from my career progress after we’ve been divorced?”

It is a valid question, and ultimately, it will come down to your judge. Judges that tend to follow the formula routinely seem to be more willing to give increases or modifications of maintenance. Judges that tend to veer away from the formula may give your specific situation more consideration and reject the modification. It just depends on the person.

Now, division of property is pretty much final unless one person made a substantial omission in their financial disclosures. In that case, you can re-open the divorce and deal with those issues for five (5) years. Absent proof of fraud or omission, it is unlikely the Court will re-open the case.

If you need to modify your divorce agreement, call us today at 303-449-1873 to set up a free consultation and find out what is possible for your situation.

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