Modification of Support and Custody Orders
Our family lawyers have a combined 30 years of experience in negotiating and litigating family law issues. We have handled hundreds of modification cases and we have the knowledge and skill to help you protect your rights.
Modification of Child Support
An existing order of child support may be modified if a change in circumstances has occurred. Whether an event qualifies as a change in circumstances is ultimately determined by a judge, but judges typically find that a reduction or increase in income, new children in the home, the graduation of a child from high school, or a change in the custodial arrangement qualify. Parents are free to agree to a modification of child support. That agreement, even if it is in writing, may not be legally binding until a new court order containing the new amount of support has been signed by a judge. If the parents are not able to agree on modification, the parent seeking a change in child support must either file a petition with a juvenile and domestic relations district court or a motion with a circuit court - which court will handle the case depends on where the prior order of child support was entered and its specific provisions. Typically, the new amount of child support will be based on the Virginia child support guidelines. In some cases, however, those guidelines may not be appropriate or the information needed to apply the guidelines (such as accurate incomes, cost of health care, etc.) may be unknown or contested.
Modification of Spousal Support
An existing order of child support may or may not be subject to being modified. If the parties signed a separation agreement that provided for spousal support, then whether or not the spousal support can be modified, and on what basis, will depend on the specific wording of the agreement. When the language of the agreement is not crystal clear on the issue, there is often significant disagreement over whether the support can be modified. In one case where another lawyer had used unclear language on modification, we had to litigate the issue all of the way to the Virginia Supreme Court. If the spousal support was not set by an agreement and instead was the result of a court order, typically either party may petition the court to modify the spousal support if a material change in circumstances, that had not been contemplated at the time the support was awarded, has occurred. In these cases, Virginia Code § 20-109 covers how and when spousal support can be modified. If the support had not set end date, however, a judge may modify the support "as the circumstances make proper." Because different judges have completely different ideas about what this phrase means, there is no guarantee that a particular judge will find that your change in circumstances will qualify. To avoid this uncertainty, we typically encourage our clients to consider resolving the issue of spousal support through a written agreement.
Modification of Custody or Visitation
An existing custody order may be modified if a material change in circumstances has occurred. The parents may reach an agreement on how custody and visitation should be modified and submit that agreement to the court. If the parents are unable to agree, however, either of them may petition a court for modification. The petitioner must first show the occurrence of a material change in circumstances that relates to the child. Many different type so changes may qualify. For instance, a parent's incarceration or criminal conviction, a parent's substance problem, a child's difficulty in school, or the relocation of a parent are all changes of circumstances that have occurred in cases we have handled. Next the petitioner must show that it would be in the child's best interest for the existing custody and visitation schedule to be changed.
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