In this article, we will discuss the process of modifying an Illinois divorce after it has been finalized and the marriage terminated. We will cover the following topics:
The word “messy” is often used to describe divorce, but from a legal standpoint, the process should be as thorough and orderly as possible. Couples and their attorneys should take the time to resolve immediate concerns, such as alimony, child support, visitation, division of assets and property, as well as address future concerns so that both parties can make informed and thought out decisions. Unfortunately, there are times when something is overlooked or circumstances change considerably, and modifications are appropriate.
Obtaining a post-judgment modification isn’t a simple process and won’t be an option for every issue or disagreement that pops up after the divorce is finalized. The system is designed this way for two reasons: (1) so that the courts are not inundated with constant requests to modify divorce agreements, and (2) so couples and their legal counsel must be as thorough and final as reasonably possible during the divorce proceedings.
If you and your ex can agree on a proposed change to the terms of your divorce, you can submit the modification to the appropriate Illinois court for approval. If approved, the changes will replace the old terms of the divorce. However, it’s rarely as simple as that.
Working out the terms with your ex and coming to an agreement requires that you and your ex sit down and speak to one another. For some divorced couples, this is not a viable option and would most likely lead to worsening tensions and little progress. Rarely, someone would willingly agree to more alimony and child support, or less parenting time. However, it is possible, and this method should be sought first before bringing legal action.
Even if you and your ex agree on new terms for your divorce, proposed changes must still follow the guidelines established under Illinois law. For example, if you are seeking to modify child support, the changes must comply with the Illinois Child Support Guidelines or you must give a good reason why you intend to deviate from the guidelines. Furthermore, if you wish to modify the child custody agreement, the court has to agree that resultant changes are still in the best interest of the child.
Even though you’re not bringing legal action against your ex to force the modification via court order, the assistance of an attorney can still help you and your ex work through the agreement process. The attorney can reach out to your former spouse to open up a dialog, and if the discussions fall apart you can pivot to a court order.
If coming to an agreement on a post-judgment modification doesn’t work out, then you must file a motion in court. However, you can’t file a motion for just any reason. As mentioned above, divorce is meant to be final. Without a legitimate need to change the divorce terms, the court won’t consider your motion. There must be evidence of a “substantial change of circumstances” to warrant post-judgment modification of a divorce agreement.
What the Illinois courts considered “substantial” is fluid, however, there are certain events that commonly precipitate a motion for modification. These include:
If you feel that a recent change in your ex-spouse’s behavior is placing you or your child at risk, there are immediate legal remedies available for emergency situations. Call and speak with a family law attorney right away.
Your word alone won’t be enough to get a post-judgment modification granted, you will need to convince the court that your substantial change in circumstances is real. You should be prepared to provide evidence to your attorney who will build the case for modification. An experienced attorney can help you gather the appropriate evidence for your situation and craft a narrative necessary to achieve success with your motion.
Whether you seek post-judgement modification via a court motion or through mutual agreement with your former spouse, the modification still requires court approval. This means that even though you and your ex may say you agree on something, it can’t be put into action until the modification has gone through the proper legal channels. Deviating from the existing divorce terms before they are changed can land you in legal trouble with the court and complicate future attempts at post-judgment modification.
O'Flaherty Law is happy to meet with you by phone or at our office locations in: