“I am not happy. Can I change my Divorce Decree?”
Typically, it’s very difficult to modify your final Marital Settlement Agreement as part of your Judgment for Dissolution of Marriage. Absent a showing of coercion, duress, or your spouse’s misrepresentation, fraud, or other serious tomfoolery relating to finances, you are more than likely stuck with your financial agreement.
The good news is that provisions concerning child support, custody, and visitation are always modifiable.
In scenarios where one party seeks an increase in child support, the requesting party must show a substantial change in circumstances. For an example, one must show that the non-custodial parent’s income has increased and the minor children’s living expenses have also increased. Conversely, the non-custodial parent who seeks to decrease his or her child support obligation must demonstrate that there has been substantial change in circumstances in his or her income. Perhaps, the non-custodial parent has lost his or her job, or is no longer earning the same income as of the date of entry of the Marital Settlement Agreement. The burden in both situations rests on the moving party.
Visitation likewise, is modifiable at any time. Although it is not essential to show a substantial change in circumstances, the party must show that the modification of the parenting schedule is in the best interests of the child, and not in the best interests of the parents. It is a fairly broad standard subject to multiple interpretations, and I encourage you to consult with me for further details.
Custody modification is more strict, understandably so. To change custody (relating to decision-making and the question of primary residence of the minor child) within a two-year period after entry of the Custody Judgment, the moving party must demonstrate that there exists a serious endangerment to the children’s emotional, moral, mental or physical health. This requirement was presumably enacted to promote residential stability of children. After the passage of the two-year window, the standard of best interest of the minor children governs. Although not as rigorous as the “serious endangerment” standard, modification of custody under the best interest of the children is still “no picnic.”
Remember, just because certain provisions relating to children are modifiable, this does not mean that you may successfully file motions at will.
One final tidbit. There is no such thing as “father’s rights” or “mother’s rights” in the Illinois Marriage and Dissolution of Marriage Act.
I encourage you to contact my office to see if a modification of a Marital Settlement Agreement is possible.