In order to modify a child support, child custody, spousal support, or any other order, the court must have jurisdiction (the ability to rule on the issue). The standard for any modification is generally “material change of circumstances” – something must have changed significantly since the last order.
The three types of orders most commonly encountered in modification proceedings are child support, spousal support, and child custody and visitation.
Child Support Modification:
Child support orders are modifiable by statute. While authorizing modification, the statutes provide no standard for determining when modification is appropriate. Case law holds that child support cannot be modified absent evidence of material change of circumstances since the original order was made.
The moving party bears the burden of showing a material change in circumstances. The moving party must present financial information on which the original order was based and current financial information.
Spousal Support Modification:
Unless the court reserves jurisdiction to make further orders, or the marriage is of long duration, post judgment support terminates at the end of the period provided in the order.
Assuming the court retains jurisdiction regarding spousal support, the court can increase, decrease, extend, or terminate spousal support upon a showing of material change of circumstances. The court must consider the same Family Code Section 4320 factors, as it considers when making a permanent spousal support order.
The marital standard of living is the benchmark the court will use when making a decision whether to modify the existing order. The needs of the supported spouse are measured in relation to the standard of living of the parties during the marriage.
Often times initial spousal support awards include an order that the supported spouse should become self-supporting within a reasonable period of time. If the supported spouse fails to self-supporting within such reasonable period of time, the court may modify the award on the grounds of changed circumstances.
Cohabitation can lead to termination of spousal support. A supported spouse’s cohabitation with a person of the opposite sex gives rise to a rebuttable presumption that the need of the supported spouse has decreased or no longer exists due to the cohabitation. “Cohabitation” means a personal, romantic relationship.
Retirement can also lead to modification of spousal support orders. No court will require anyone over the age of 65 to continue to work in order to support his or her former spouse. Thus, if the supporting spouse’s income is substantially decreased because of retirement and he or she has attained the retirement age, this may constitute a change of circumstances for purposes of a motion to modify a spousal support order.
Child Custody Modification:
The standard for a modification in an existing child custody order is “material change in circumstances” and “the best interest of the child” standard. The burden is on the moving party to show a change in circumstances and that a different arrangement would be in the child’s best interest.