There are two typical divorce agreements that are created when a couple goes through the divorce process: the first is called a separation agreement, that deals with “adult issues,” and the second is the parenting plan, that deals with “kid issues.”
In this blog post we’ll look at both types of agreements and whether either of them can be revised after you have settled your divorce case. Let’s look at the parenting plan first.
The Parenting Plan
This document will handle guidelines for decision-making (who makes the major decisions for the kids, such as what religion they will be, which school they will attend, what medical treatment they will receive, etc.) It will also cover parenting time, including setting the regular schedule, the holiday and vacation schedules. Finally, if it’s not detailed in the separation agreement, the parenting plan will also include child support.
So: can the parenting plan be altered after the divorce is finalized? YES.
There is no such thing as a permanent parenting plan. The Court always has the ability to go back and revise child-related issues, because the law is based on the idea that Court Orders should reflect whatever is in the best interest of the kids. If the situation changes in such a way that it means the kids would be better off with an altered agreement, making changes will always be a possibility/probability.
For example, say your former spouse recently received a major promotion and raise. You can go back to the Court and request that child support be recalculated based on his or her updated earnings. In order to do that, you’ll need to demonstrate a significant change of circumstance, which the statute in Colorado defines this as a minimum of 10% of the present support amount. This means that if child support is $500, and under the new calculation it would be $549, that would not be considered significant. If it would be $551, that is significant.
You’ll also have to demonstrate that the change is continuing. However, it they invest the inheritance and have a regular income based on that investment, the change would be continuing.
Once again, the Court never loses jurisdiction over the parenting plan. It will always rule in favor of what it perceives to be in the best interest of the child, and there is no way to enter non-modifiable parenting agreements. It’s not allowed.
The Separation Agreement
This separation agreement addresses maintenance/alimony, property division, debt division, and usually will also deal with attorney’s fees. Some people include child support in the separation agreement, determining that the exchange of funds is an adult issue. Other people will put child support in the parenting plan.
Separation agreements are viewed very differently from parenting agreements in the eyes of the Court. There are several aspects of this agreement.
Maintenance (this is what alimony is technically called) is almost always modifiable. As long as there is a significant, continuing change of circumstances, maintenance can be modified. However, the Court can also make maintenance contractual, meaning that it cannot be modified. This is only possible if both parties agree to contractual maintenance. To make sure this is clear, the Court cannot order contractual maintenance unless both parties indicate that they agree.
Maintenance generally terminates on a set date, or the receiving party’s re-marriage. It also terminates upon either party’s death, so a new spouse doesn’t wind up having to pay maintenance if the original spouse dies. Generally, there can be no claim against the estate, although this may not apply if contractual maintenance is in play. If a party wants to care for his/her ex-spouse, that is usually addressed by required a spouse to carry insurance with the ex-spouse as the named beneficiary.
Division of Property and Debts
This is basically non-modifiable unless there has been a material omission or misstatement. In that case, you have a period of time that will allow you to go back and ask the Court to re-do the division based on the material misrepresentation and/or omission.
Here’s an example of this in action: I once heard of a divorcing couple where the wife was an art dealer. At the time of divorce, the husband relied on the wife to accurately value the artwork they collectively owned. She told him that their most valuable piece was worth $250k, he believed her, and they worked out the property division based on her valuation. Not surprisingly, she got this piece of art.
Immediately after the divorce was final, she sells the painting for $400,000. Husband finds out about the sale and does a little digging, only to discover that his wife had already made a deal with the buyers before the divorce was finalized. “Just wait until my divorce is finalized,” she had told the buyers. She not only knew what the painting was really worth, but actually had an offer and delayed accepting it to cheat her husband.
They went to Court, and the judge ordered her to pay him an additional $75,000, as well as 100% of his attorneys fees.
Generally, each party is responsible for his/her attorney’s fees. The Court can order one party to pay all or a portion of the other party’s fees in two (2) circumstances: 1) At the end of the divorce, one party is in a far superior financial situation or 2) The Court finds that a party acted improperly by hiding/misrepresenting the value of assets.
Most Agreements provide that future attorney’s fees will be addressed at that time.
Courts Want Resolution
As a general rule, the Courts don’t want people to continue fighting. Their goal is to resolve issues as quickly and fairly as possible.
If you are thinking about requesting a revision in the parenting or separation agreement, let’s talk. Call our office today at 303-449-1873 to schedule a complimentary consultation and find out if Barre Sakol is the right representative for your case.