If you are headed towards divorce and you and your spouse have children together, you are going to need to create a parenting plan, which outlines all matters pertaining to child custody and visitation. If you and your spouse simply can’t come to terms on a child custody agreement, it will be up to the judge to decide based on the best interests of the children.
In situations where the parents are fighting for primary or sole custody, the judge will look at the totality of the family’s circumstances in order to render a decision. The judge will review a number of factors before deciding on the best child custody arrangement, which may result in joint custody, or one parent may be awarded sole custody, while the other parent receives visitation.
Some of the factors used to determine child custody:
- Each parent’s desires,
- The child’s wishes (if the child is old enough),
- Each parent’s relationship with the child,
- Each parent’s ability to support the child,
- The child’s ties to their school, friends, family, and the community,
- Each parent’s willingness to allow frequent and ongoing contact between the child and the other parent,
- Any history of drug or alcohol abuse,
- Any history of domestic violence,
- Any history of mental illness,
- Any criminal history,
- Any history of neglect or not placing the child in school according to state law, and
- Anything else that would be considered relevant to the child custody matter.
If you or your spouse is a stay-at-home parent, or if one of you earns significantly less than the other spouse, the higher-earning spouse may agree to pay spousal support.
If the higher-earning spouse does not want to pay spousal support, but they can afford to, the judge presiding over the divorce may award spousal support despite the higher-earning spouse’s objections.
It all depends on the circumstances of the case: if the lower-earning spouse needs support, and if the higher-earning spouse has the means to pay it.
For example, let’s say a man earns $15,000 more per a year than his employed wife. After paying child support, he can’t afford to pay spousal support. Since the wife is employed, in good health, and the children are school age, the judge decides not to order spousal support because the husband simply can’t afford it.
Note: In California, spousal support is not automatic, but when spousal support is awarded, it’s usually awarded for one-half the length of the marriage. So, if a couple was married for eight years, spousal support would likely be ordered for four years. However, if the marriage was “of long duration,” meaning, over 10 years, the judge may decide to award spousal support, but without an end date.
Fact: Your Life After Divorce Will Change
If you are about to file for divorce, or if you are in the process of filing, we want you know that change is inevitable. No matter how your life looks today, it’s going to change in the years to come. What types of changes are we talking about? The most common changes that occur in the first 5 or so years post-divorce, include:
- An ex-spouse moves away to be closer to family, to remarry, for a job, or for a simple change in scenery.
- One or both spouses remarry.
- An ex-spouse loses a job.
- An ex-spouse is promoted or otherwise enjoys financial success in their career.
- An ex-spouse becomes disabled or suffers from a terminal disease.
- An ex-spouse goes back to college, or receives a higher education and is able to earn a much higher salary than they did at the time of the divorce.
- The ex-couple’s child becomes a teenager and decides that they want to live with the other parent.
- The ex-couple’s children do not like a new stepparent and want to live with their other parent.
- An ex-spouse neglects the children, or becomes addicted to drugs or alcohol and it’s affecting the children’s safety and well-being.
- An ex-spouse becomes physically or emotionally abusive towards the children.
- An ex-spouse develops mental health issues and cannot properly care for the children.
- An ex-spouse is found guilty of a crime and is sent to jail or prison.
Whenever there is a significant change in circumstances, for example, a parent remarries and wants to move to the East Coast with the children, then either parent has the right to ask the court for what’s called a “post-judgement modification.”
In this case, let’s say it’s the mother who wants to move to the East Coast to marry a man she met online. Since she has joint custody, she’d have to go to court to modify the standing child custody agreement.
If her ex-husband puts up a fight, it’s possible that the judge would order the children to stay in Los Angeles with their father, or the judge may allow the mother to move to New York with the children because despite what the parenting plan says, the children’s father rarely ever sees them.
Asking for a Post-Judgement Modification
Circumstances always change after a divorce. Whether things change after one year, or five years, change remains a constant. That said, it’s not uncommon for parents to go back to court for a post-judgement modification.
Generally, post-judgement modifications pertain to child support, child custody, visitation, and spousal support. For example, let’s say you are ordered to pay child support and you lose your job. You were able to get a new job, but you took a big pay cut. In that case, you would want to go back to court for a downward modification of your child support payments.
On the other hand, let’s say you were married for nine years and you spent all of those years as a stay-at-home mother. You’ve been divorced for one year and your ex-husband just received that “big promotion” and raise that he’s been hoping for.
Since you’ve been having a difficult time supporting your three children and paying for childcare with your new low-earning job, you can ask the court to increase your spousal support payments – an upward modification.
Essentially, for an ex-spouse to receive any type of a modification to child custody, child or spousal support, they would have to show the judge that there has been a significant change in circumstances that would justify such a change.
Do you need to go back to court to change a divorce or family court order? If so, contact our office for a free consultation – we would be glad to assist you.