Modification and Enforcement

All prior custody and child support orders can be modified and enforced, and most prior spousal support orders can be modified and enforced.  Typically, prior orders of the court regarding property or debt cannot be modified, but they can be enforced.

Modification

Parties can sometimes negotiate a modification without needing to go to trial. This is most often the case when it is clear to both sides that a modification is likely to be granted and both parties wish to avoid the cost of a trial. Even if parties agree to a modification, however, usually they must submit a court order to make the modification final. 

Modification of Spousal Support 

Virginia Code Section 20-109 provides that: “Upon petition of either party the court may increase, decrease, or terminate the amount or duration of any spousal support and maintenance that may thereafter accrue, whether previously or hereafter awarded, as the circumstances may make proper.”

No Modification if Agreement Prohibits

If the parties’ stipulation or contract expressly states that the amount or duration of spousal support is non-modifiable, then it will not be possible to modify spousal support. 

Reasons for Modification

If the parties’ agreement does not prohibit modification, a petition for modification may be filed for two main reasons.

Cohabitation: First, if the spouse receiving support “has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more commencing on or after July 1, 1997, the court shall terminate spousal support and maintenance.”  

Material Change in Circumstances:  Second, the statute provides that if the court finds that there has been a material change in circumstances, the court shall determine whether any modification or termination of such spousal support should be granted. 

Changes of financial circumstances typically include things like loss of a job, retirement, a pay raise or decrease, a change in the cost of health insurance, childcare or other expenses. 

The change in circumstances cannot be one that was reasonably in the contemplation of the parties when the award was made or an event which the court anticipated would occur during the duration of the award and which was significant in the making of the award.  For example, if at the time the original spousal support order was made, both parties knew one of the spouses was going to change jobs, that change in jobs could not be used as the change in circumstances. 

A change of circumstances, alone, does not guaranty a modification.  Rather, once a change of circumstances has been proven, the court will hear evidence on the current financial circumstances of the parties and the court will decide whether support should be modified, and if so, by how much. 

Modification at Retirement.  By law, the payor spouse’s attainment of full retirement age shall be considered a material change in circumstances. “Full retirement age” means the normal retirement age at which a person is eligible to receive full retirement benefits under the federal Social Security Act, but “full retirement age” does not mean “early retirement age” as defined under the federal Social Security Act (42 U.S.C. § 416, as amended).  When a petition for modification based on retirement is filed, the court is required to consider the factors in Virginia Code Section 20-107.1 and:

1. Whether retirement was contemplated by the court and specifically considered by the court when the spousal support was awarded;

2. Whether the retirement is mandatory or voluntary, and the terms and conditions related to such retirement;

3. Whether the retirement would result in a change in the income of either the payor or the payee spouse;

4. The age and health of the parties;

5. The duration and amount of spousal support already paid; and

6. The assets or property interest of each of the parties during the period from the date of the support order and up to the date of the hearing on modification or termination.

Factors to Consider

In any proceeding for modification of spousal support, the court is required to examine the factors of Virginia Code Section 20-107.1 and to consider the assets or property interest of each of the parties from the date of the support order and up to the time of the hearing on modification or termination, and any income generated from the asset or property interest. If spousal support was originally part of a separation agreement, and that agreement prohibits modification of the spousal support, there may be no opportunity to modify the support.  If there was no prior agreement or if there was an agreement but it did not prohibit modification, then you may be able to modify both the term (length) and amount of spousal support if a change of financial circumstances has occurred since the last support order.  

Termination at Death or Remarriage

Unless the parties’ otherwise provided by stipulation or contract, spousal support and maintenance shall terminate upon the death of either party or remarriage of the spouse receiving support. The spouse entitled to support shall have an affirmative duty to notify the payor spouse immediately of remarriage at the last known address of the payor spouse.

Modification of Child Support

Modification of child support is governed by Virginia Code Section 20-108.  A party may seek modification if a change in circumstances has occurred since the date of the last child support order.  

Retroactive Application.  The court has the opportunity to make the modification of spousal or child support retroactive back to the date the pleading seeking modification was filed and served.  If the court makes the modification retroactive, the recipient of support may have to pay some back or the payor of the support may have to pay an extra amount.

Modification of Custody or Visitation 

You may be able to modify a custody or visitation order if a change of circumstances has occurred that justifies a modification.  Changes of circumstances typically involve things like a parent remarrying, a parent having a new boyfriend or girlfriend move in, a parent moving, a child doing poorly in the care of one parent, abuse or neglect, or unilateral decision making by one party.  By statute, an intentionally withholding of a child from a parent may be a change of circumstances.  A change of circumstances, alone does not guaranty a modification.  Rather, once a change of circumstances has been proven, the court will hear evidence and determine whether a modification of custody is necessary.  

In a modification proceeding, the court will apply all of the factors set out in Virginia Code Section 20-124.3. These include:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers, and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference;

9. Any history of (i) family abuse as that term is defined in § 16.1-228; (ii) sexual abuse; (iii) child abuse; or (iv) an act of violence, force, or threat as defined in § 19.2-152.7:1 that occurred no earlier than 10 years prior to the date a petition is filed. If the court finds such a history or act, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination.

Modification Process

The process of seeking a modification involves:

• filing a pleading (a petition or motion) 
• the other party can choose to file a response
• scheduling a trial date
• preparing for trial
• conducting the trial
• getting a ruling

Prior Orders Remain in Effect until Modified

In all types of modification cases, the prior order remains in effect and enforceable until the court has issued a new order with a modification.  So, for instance, if the prior order required payment of $500 per month in child support, that amount would need to be paid until the court has modified the prior order. 

Enforcement 

If a party is violating a court order, the other party can seek to enforce the court order through a contempt proceeding.  To initiate a contempt proceeding, a party must file a motion to show cause and have it served on the other party.  The court will issue an order requiring the other party to appear in court and “show cause” why he/she should not be held in contempt.  

At the hearing, a party will be found in contempt if:

• the order to be enforced contained a clear obligation
• the party willfully failed to meet the obligation

Defending against Contempt 

A party charged with contempt can avoid the charge if he/she proves that the order was not clear.  For example, if a court order said “Husband must pay $50 to Wife” but there is no date by which the payment was to be made, the husband could argue that the order was not clear as to when the payment had to be made.  A party can also defend against contempt by showing that he/she did not willfully disobey the order.  For example, let’s say a court order required a parent to be at a custodial pickup by 4:00 p.m.  That parent, on the way to pickup, was in a car accident and could not make it by 4:00 p.m..  He or she could argue to the court that the failure to obey the order was not willful.

A party who is held in contempt is typically ordered to purge the contempt within a certain amount of time or risk being put in jail.  A purge could include doing what the order originally required, paying the other party’s attorney’s fees, or other actions.