Overview of Modifications
Most judgments cannot be modified at all. A few can.
This is our overview of what can be modified, and how.
Any discussion of modifications of a court order begins with the concept of finality. Imagine a breach of contract case where a vendor provides goods to a business, but the business refuses to pay. The vendor sues the business for nonpayment of the agreed price. Lawyers are hired, depositions taken, documents exchanged. The business claims that the goods delivered were shoddy, or perhaps that they were not delivered at all. A jury is impaneled, trial conducted. The jury announces its verdict, the judge signs a judgment. The loser appeals the judgment. The appellate courts decide the appeal.
At long last the case is over. Both sides have to live with the result, regardless of whether the result was “fair,” or “justice.”
This is what happens not only in breach of contract cases, but also in car wreck cases, defamation cases, malpractice cases, land cases, lawsuits over faulty construction or negligence or intentional torts, criminal cases, admiralty cases, patent infringement, and on and on. Somebody wins, somebody loses, but no matter what, the case is over.
Imagine the havoc if the loser could have a do-over, a modification, so that lawyers have to be re-hired, cases have to be re-tried, juries have to re-decide, and so forth. The system would degenerate into a contest of who can afford to litigate the longest. The law abhors such a result. It clings to the concept of finality. Other than results obtained by fraud, force, or a few other narrow exceptions, once a case is over, it’s over. No do-overs. No modifications.
This is so even in the realm of divorce. If a divorce has been granted, it’s granted. Once property has been divided, it’s divided. Once the judgment is final, it’s final. But there are four areas of law where modifications are allowed:
• Child custody
• Child visitation
• Child support
• Alimony
Imagine a parent with custody who becomes an addict, or who marries a violent criminal. Custody may have been appropriate under the circumstances at the time of the original judgment, but clearly the best interests of the child suggest a reconsideration of whether the same custodial arrangement is still appropriate. Or perhaps it is the non-custodial parent who becomes the addict. A generous visitation schedule may have been appropriate before the addiction, but now it might not.
It might be appropriate to reduce the child support or alimony obligation for a parent who has lost his job through no fault of his own. It might be appropriate to increase child support where ten years have passed since the divorce, the children are now teenagers with expensive needs, and the non-custodial parent makes more than he did when he divorced.
In all of these situations, the matter to be litigated is not the status quo when the original order was entered. If the original judgment was entered in 2013, modifying custody in 2023 is not a relitigation of the status quo in 2013; it is a new litigation of the status quo in 2023. This is appropriate if the status quo in 2023 is different from the status quo in 2013 in a way that makes modification appropriate.
That last phrase is the tricky part. Of course as time goes by everyone’s situation will change. We all grow older, we make more money (or less), our expenses go up (or down), as do those of our children; we adopt healthier habits (or worse), we remarry, and our new spouse loves our children (or hates them); we relocate, our relationship with our children improves (or worsens), and on and on.
Change is the only constant. If all the law required to modify a judgment was change, judgments would always be subject to modification. As soon as a decision was entered by the judge, it would immediately be relitigated because, well, change. The system would degenerate into a contest of who can afford to litigate the longest. The law abhors such a result.
That, then, is the tension in the law. There is a great need for finality. Yet there is also a need for modification when the situation clearly requires it – especially where the well-being of children is involved. When does the need for finality outweigh the need for modification? Or vice versa?
Judges use different guidelines when deciding whether a modification is appropriate, depending on the modification being requested. The rules for modification of custody are different than the rules for modification of visitation, and both are different than the rules of modification of child support. But there are a few guidelines common to all modifications:
• The change must have occurred after the original judgment.
• The change must be substantial.
• The change must have been unanticipated at the time of the original judgment.
• The modification sought must be an improvement over the original judgment, given the present circumstances.
The change must have occurred after the original judgment. By “original judgment,” we mean the judgment sought to be modified. Suppose you learn something important after your trial is over, such as that there was a witness who could have really helped your case if only you had known about it, or a document came to light. Or suppose your lawyer failed to tell the judge something important at trial, or the judge simply got the facts all mixed up in his judgment. None of these events would qualify as a change occurring after the judgment.
The change must have been substantial. The fact that your ex-husband’s income went up by 2% last year probably isn’t substantial enough to support a modification of child support. The fact that the child came home with insect bites because the other parent didn’t put bug spray on her isn’t going to change custody or visitation.
How substantial does the change have to be to support a modification? There’s no definitive answer; our experience is that different people weigh things differently. For example, a mother lets an 8 year old ride her bicycle all over the neighborhood unsupervised. To some, that’s negligence. To others, it’s no big deal. Different judges will weigh the same case differently, so it’s up to your lawyer (who knows the tendencies of the judges whom she practices before) to give you an idea of whether the change in your case is substantial or insubstantial.
The change must have been unanticipated at the time of the original judgment. This is sister to the requirement that the change must have occurred after the original judgment. The idea behind both is that if the judge already knew about it, or should have known about it, when the original judgment was being decided, it’s not a reason to change that judgment. So if somebody knew during the trial of the original case that they were going to lose their job, or start a new one, that fact was (or should have been) brought to the judge’s attention to be part of what was under consideration.
This can be a tricky question. Everyone anticipates that children will get older and that their needs will increase, yet this typically is not a bar to modification of child support. Everyone anticipates retirement, even though we may not know when exactly that will happen. If someone has a medical condition, we can anticipate that it might worsen. Again, different judges will have different attitudes about how unanticipated a change must be.
The modification sought must be an improvement over the original judgment. If dad’s a drug addict, there’s not much sense in giving him custody – even if mom’s care for the children isn’t as good as it used to be. This often comes into play in modification of visitation cases. Even if the old schedule is not working particularly well, there is no point in changing it unless a better one can be put in place.
None of the foregoing rules are absolutes that apply in all cases. The strength of their application often depends on what is sought to be modified. The rules for modification of custody are very different from those for the modification of visitation. We can explore these differences in the following sections.