Life is a constantly changing series of events and circumstances, so the separation or divorce agreement that made sense a couple of years ago might need to be modified. A new employment opportunity could require that you relocate and require changes to the child custody and access provisions of your agreement, or unforeseen circumstances could create a need to change the child or spousal support provisions of the agreement. As a general rule, courts are reluctant to make changes to agreements fairly negotiated and voluntarily entered in to by its parties, but going to court is one of the options available to you in order to modify your divorce.
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Renegotiating with the Other Party
The terms of an agreement reached with your spouse to settle the terms of a divorce might have adequately addressed a particular situation or issue, but the passage of time and changes in circumstances could make its provisions inadequate or onerous. For example, if you have been forced to accept a new position at work at a lower salary, the child support you agreed to in your divorce agreement could now be a financial burden that you can no longer meet.
Your first option when the need for a modification arises should be to approach the other party. The agreement the two of you voluntarily signed either at the time of separation or to settle a divorce action can be modified through the mutual consent of its parties.
If you and the other party can agree to a change, the prior agreement continues. Your lawyer will prepare a written amendment changing only certain provisions of the agreement and leaving other provisions unchanged. The amendment becomes a part of the original agreement once it is signed by the parties.
Modification Through Arbitration or Mediation
Mediation and arbitration are two methods parties may use to modify the terms of a divorce or separation agreement. In fact, you should review the terms of your agreement to determine if one of its provisions is a requirement that disputes, modifications and amendments must be submitted to mediation or arbitration for resolution.
Mediation is a process for resolving disputes through the assistance of an impartial mediator. Mediators are trained to assist the parties to contracts and agreements to modify their terms. Mediators do not make decisions. Their role is to facilitate decisions and agreements made by the parties.
In contrast to mediation in which the parties make the decisions, arbitration is similar to a court proceeding. An independent arbitrator is chosen to review the evidence, including testimony, submitted by the parties and render a binding decision. Unlike mediators who attempt to bring the parties together to reach a mutually acceptable modification, an arbitrator makes a decision based on the evidence.
Asking a Court to Modify a Divorce Agreement
Before resorting to the court process to modify your divorce settlement, keep in mind that courts are reluctant to make changes to agreements fairly and voluntarily reached by the spouses particularly when there has been full financial disclosure and each party was represented by a lawyer of his or her own choosing. Court look for evidence proving a significant change in circumstances since the agreement was made or fraud, duress or other issue casting doubt on the fairness or voluntariness of the original agreement.
Speak to a Lawyer Before Seeking a Modification
It is important to obtain advice and guidance from a lawyer with extensive experience and knowledge handling divorce, separation and modification of agreements. A review of your divorce agreement and your current circumstances should permit the lawyer to advise you about the option that is best for you.