Minneapolis Post Decree Modification LAWYER
After your divorce, circumstances may change. The Cost-of-Living increases annually. You may have unexpected expenses, or your expenses may simply increase faster than your cash flow. You may be injured or lose your job. Your former spouse may have a sudden change in fortune either up or down. While property settlements are as a rule almost always final, both spousal maintenance and child support are subject to modification. Property settlements in rare circumstances may be modified upon a showing of fraud, or if it can be shown that the settlement is no longer equitable.
Children’s needs also change over time as to the parenting time schedules they follow with each parent. A schedule agreed to for a five-year-old child may no longer make sense or work for a teenager. You or your spouses’ ability to care for the children may also be impacted post-divorce by a career changes, chemical dependency issues or other factors impacting the best interests of your children.
Minnesota has specific laws and processes to modify child support, spousal maintenance, custody and parenting time, and to move to reopen or modify a property settlement. Brian has over 38 years in dealing with these issues, and can advise you as to your odds of success in prevailing in a motion for modification, and can assist you in modifying your decree when needed and appropriate, based on the financial circumstances of you and your former spouse, and when appropriate, for best interests of your children. Contact Brian today to discuss any needs or concerns about post-decree modification. A further discussion of some of these issues is found below.
Schedule a free initial consultation with Brian to discuss your case. You can reach Sobol Family Law by email or by phone at (612) 662-4488.
Motions to Modify Child Support
An obligor may seek a modification of child support obligation when they lose employment or otherwise experiences a significant reduction in their income. The statute for medication of support has certain income thresholds in which a change is deemed to be substantial as a matter of law. A party opposing a reduction in support based upon an alleged change in income may argue that the decreased income is intentional or short term. This is especially true if the obligor is self-employed. A court may deny a motion to reduce child support if it finds that the obligor has intentionally reduced his or her income, has not taken reasonable steps to find new employment, or has other financial resources available to continue to pay support. Sometimes, motions to modify occur after the emancipation of a minor child (the child graduates from high school and is eighteen years old), especially if the prior order establishing child support doesn’t provide for an automatic reduction in support.
There are numerous nuances and factors coming into play relative to motions to modify support. It is always good to have the help of a seasoned, experienced attorney to guide you through the nuances of modifications of child support.
Motions to Modify Spousal Maintenance
A person who is receiving spousal maintenance, who has not waived their rights to modify maintenance in their original decree, may ask the Court to modify the maintenance award by increasing the amount and/or extending the length of the award. Many times, this occurs when a maintenance recipient is awarded rehabilitative maintenance and is unable to complete retraining or is unable to find suitable employment following the divorce to fully support him or her. Also, if the recipient’s monthly expenses increase and/or the maintenance payor’s income correspondingly increases or decreases, the court may modify the maintenance award the maintenance award. As with child support, the threshold determination is whether there has been a change in circumstances making the prior award unreasonable and unfair.
A person owing spousal maintenance may also seek a modification of spousal maintenance if the obligor has had a financial setback and a reduction in income or increase in expenses. A maintenance recipient opposing a reduction in maintenance based upon the payor’s claimed income reduction may argue that the decreased income is intentional or short term. This is especially true if the obligor is self-employed. A court may deny a motion to reduce maintenance if it finds that the obligor has intentionally reduced his or her income, has not take reasonable steps to find new employment, or has other financial resources available to continue to pay maintenance. A maintenance payor may also seek modification if the recipient has a substantial increase in income, thus reducing the need for spousal maintenance. Also, if a spousal maintenance recipient establishes a new relationship, and their new partner moves in with the recipient or other otherwise contributes to their support, the result of reducing the recipient’s need may form the basis of a motion to modify.
Remarriage also in most cases terminates the obligation to pay spousal maintenance. If your former spouse is receiving his or her maintenance through wage withholding administered by the county, it may be necessary to serve a motion to obtain a formal order terminating the obligation.
Cost of Living Increases
In most cases your decree will have provisions for implementing a cost-of-living increase (COLA) to child support and spousal maintenance every two years by simply serving a notice upon the obligor, which includes a calculation indicating the change in the cost of living that has occurred since the last order, what percentage change in the obligor’s obligation this represents, and what new amount of support or maintenance will be due after applying the COLA. Once served, the obligor has twenty days to schedule a hearing if he or she objects to the COLA modification. A defense to a COLA request is that the obligor’s income has not changed more than the cost of living or that the obligor has not received a cost-of-living increase to his or her income.
Modification of Custody or Parenting Time
There are a myriad of reasons why people seek to change the provisions of their decree relative to their children. Children age and their needs change. Children as they grow may have more of an ability to express the desire to spend more or less time with a parent. Changes in children’s activities expand as they age and sometimes tax a parent’s ability to get their children to activities. New relationships may cause issues with parenting time. Job changes or moves may impact a parent’s ability to parent. Issues with drugs and alcohol may endanger children.
Motions to modify parenting time are routinely brought for one or more of these reasons. Numerous factors and processes may come into play depending on the facts of your case. The Court may appoint neutral experts to assist in recommending or crafting a new parenting plan. The Court may require the parties’ mediate changes to parenting time if their decree does not already require such mediation before making a motion. You may have provisions in your decree delegating these issues not to the court, but to your Parenting Consultant.
While the Court will consider motions to modify your parenting time schedule, more difficult are motions to modify custody, which typically require a threshold showing of endangerment to support such a motion. There are also limits as to how often a motion to modify custody may be heard, absent an exception no less than a year after the original award of custody, and thereafter, absent an exception, no more than once every two years.
Testimonials
Read What Satisfied Clients Say About Working with Brian
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“Brian was tenacious in helping me protect my children and was able to uncover our finances to allow us to ultimately reach a fair division of our property and a fair award of support for me and my children.”- Megan C.
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“His work is nothing but extraordinary. What he did for my friend was impossible to even think could be done. Brian did what he would do for his own family.”- Yelena B.
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“His knowledge in a variety of legal aspects is unparalleled. We feel fortunate to have his representation.”- Jeff
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“He made the process of the ordeal as good as it could have been, including the outcome. I would recommend Brian to anyone, who wants an exceptional professional and advocate to represent them in a legal matter.”- Former Client
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“After Brian negotiated my divorce settlement, my ex-husband, surprisingly, delivered the highest compliment, stating "Brian was brilliant."”- Barbara
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“During the past three years Brian helped me through a bitterly contested family law matter.”- David
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“Brian Sobol is methodical in his approach. It takes a long time to move through the family court process but I can sit back now and relax. A highly skilled professional will argue the law and fight for me to see my kids.”- Julie M.
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“I know I won't have need of for Mr. Sobol again. If I did though...Brian Sobol would be the person I would have defend me!”- Tammy G.
Procedure
Other than a request for a COLA modification, in order to modify an award of child support or spousal maintenance, a formal motion must be filed with the court explaining the basis for the requested change and documentation to support the request. Child support motions are heard by “Child Support Magistrates.” Child Support Magistrates only have the authority to hear support cases. Motions to modify spousal maintenance, custody or parenting time, or combined motions to modify support, maintenance and/or other requests for relief are heard by a district court judge or referee. Generally, these motions are heard based upon the affidavits of the parties, although the Court does have the discretion of scheduling an evidentiary hearing and taking testimony from the parties and other witnesses. Notwithstanding this, many decrees may provisions requiring you first attempt to mediate your dispute before turning to the court for relief.
Whether you are attempting to increase, decrease or terminate the award of maintenance or child support, wanting to modify custody or parenting time, or if you are opposing a request for a change, the parties will in most cases be required to exchange detailed financial information, including income tax returns, paystubs, bank records and budgets.
This exchange of information, called “discovery,” usually will take place before the motion is actually heard by the court, but occasionally it is necessary to have an initial hearing to request more information. If one of the parties is self-employed or the parties’ finances are complicated, it may be necessary to engage the services of a forensic accountant to assist in determining the party’s incomes and needs and to assess the tax implications of the payment of support and maintenance. The Court may also order a full or partial custody or parenting time evaluation, or may appoint a guardian based upon the circumstances presented as to a request to change provisions in a decree related to your children.
Brian L. Sobol has had decades of success handling post-decree modification motions, on behalf of both recipients and payors of support and maintenance, and for parents seeking or resisting a request to change custody or parenting time.
Contact Brian today for a free consultation and assessment of your chances of a motion for modification.