Once a divorce is finalized, and the parenting agreement in place, the decree will have the specific terms to property division, parenting time, child support, and maintenance support. The decree is considered law—it is legally binding. Sometimes parents have a very different understanding of the obligations and parameters of the decree. Sometimes the decree is inappropriate or unfair forcing parents into a set of requirements that do not fit their needs. Other cases circumstances change over time and the agreement no longer applies to the current situation. When a divorce settlement or parenting plan is no longer appropriate parents may alter the terms of the agreement through a post-decree modification.
Once a divorce is finalized the terms of the marital settlement and parenting agreement have specific terms that are considered law. Typically, you cannot modify the property settlement if more than 30 days has passed, unless you can prove it was divided fraudulently. If 30 days has not passed you can file a motion with the court that handled your divorce to modify the property settlement.
Parenting time may be modified at any time. If the court discovers facts that were not anticipated when the parental agreement was ordered, if there has been a substantial change in circumstances for the child, or either parent, then a modification is necessary to serve the child’s best interest.
Parental decision-making responsibilities may only be modified 2 years after the date of the final order unless there is reason to believe the child’s present environment may seriously endanger his mental, moral, or physical health or significantly impair the child’s emotional development. The court in a modification of a parental decision-making will consider the child’s best interests.
Child support can be modified in Illinois when there is a substantial increase or decrease in income for either party. The reduction of income cannot be self-imposed, it must be due to natural circumstances. Child support may also be modified when a child turns 18 and has graduated from high school.
In Illinois maintenance can be modified if the marital settlement agreement states it is modifiable. If it states it is to be non-modifiable then the amount remains the same through the term of the agreement.
Maintenance can be modified when there is a substantial change in financial circumstances. However, when the payor’s income increases it does not mean maintenance may increase. Maintenance is for the former spouse to enjoy the same economic lifestyle after divorce as she had during the marriage. The receiver is not due an increase due to her former husband enjoying an improved lifestyle.
A parent relocating is considered a substantial change in circumstances. If a parent moves more than 25 miles and lives in Cook, Will, DuPage, Kane, Lake or McHenry away the parent intending to move needs to provide written notice of the relocation to the other parent under the parenting plan or allocation judgment. If the parent lives in any of the other counties notice needs to be provided if they move more than 50 miles. The notice must be filed with the Court, and provided at least 60 days before the relocation unless it is impracticable. In such a case it needs to be provided at the earliest possible date. If both parents sign the notice the Court will modify the agreement and permit the relocating parent’s relocation to be in the child’s best interest. If the non-relocating parent does not agree to sign the notice, the relocating parent must file a petition seeking the Court’s permission to relocate.
The Court looks at various factors in considering the relocation:
Custody can only be changed two years after the parenting agreement has been approved by the court. Before that time the only way a custody change can occur is when the child’s present environment seriously endangers her mental, moral or physical health, or significantly impairs the child’s emotional development.
The court may modify a parental agreement without a change of circumstances if the modification is in the child’s best interest and one of the following; 1) The modification reflects the actual arrangements for which the child has been receiving care for the last six months. For example, the agreement has one parent getting visitation on Mondays, but the residential parent has permitted visits on Mondays and Wednesdays. The court could allow this modification, because it has already occurred with both parties consent. 2) The modification is minor. 3) The modification is necessary based on facts the court did not have at the time, and the order would have been different had the court know of those facts. 4) Both parties agree to the modification.
Deciding if a modification is possible, and what is a substantial change in circumstances can be difficult. Seeking the advice of an attorney before filing a motion to modify can save you time and money. Call our experienced family law attorneys at (630) 324-6666 for help with modifying your parenting agreement in Illinois.
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