Alabama Divorce Modifications & Petition to Modify
Uncontested Alabama Divorce Modifications
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When the Court enters a divorce decree, it is an Order by the Judge for the parties to do perform certain actions or do certain things such as pay child support or transfer property. To change this, one party must file a Petition to begin an Alabama divorce modification. If the parties have an agreement, then the divorce decree orders the parties to abide by their agreement. If the parties went to trial and had the judge decide the issues, meaning judge decided and there was no agreement, then whatever the judge decided is what is ordered in the final divorce decree. Either way, the divorce decree is an Order from the Judge for the parties to behave a certain way. To change or modify a divorce decree by agreement of the other party is fairly simple and mostly paperwork. To change or modify the terms of the decree without the other party being agreeable, requires hearings and is much more expensive and time consuming since it is contested and the judge has to decide whether or not to do so. Call us today to do an Alabama divorce modification in your prior case.
To modify the old decree by agreement is pretty simple. If you and your ex-spouse had a settlement agreement in your divorce and both of you now want to go back and change the child support, custody, or visitation by agreement then we just prepare something for both of you to sign and get it filed with the Court. The Judge will not usually have a hearing since both parties are in complete agreement. To do this, we charge a flat fee plus filing fee. The filing fees for an Alabama divorce modification vary from county to county but are usually between $200 and $350 or more, depending on the county your case was in originally.
If you are not in agreement with your ex-spouse then you will need to file a contested petition to modify your divorce decree. To do this we require something called a retainer up front that the attorney bills out of hourly as they work on your case. To file a contested petition to modify with no agreement, you just pay us the retainer, sign a few forms, and we get it filed. Once filed, your ex-spouse will need to be served. Once we properly serve the ex-spouse by process server or mail, then we wait for their response. Sometimes they will get an attorney and file a response and sometimes they will ignore it altogether. If ignored, you might be able to get it approved by the judge at the hearing if they do not show up. If they respond with an attorney, then there will be hearings and other events in an attempt to resolve the conflict. If the parties cannot reach an agreement then the judge will have a trial and decide the issue for the filing party.
When asking a Judge to change a prior Order like a divorce decree, there are certain factors that are considered. Generally speaking, for a court to re-assess the terms of your divorce decree, there must be some kind of material change in your circumstances. Then, if you are the petitioner, you will need to convince the Court that the new circumstances justify altering the terms of the decree. One thing that cannot generally be changed, is the division of property that was ordered in the divorce. However, you can petition the Court to enforce the transfer of property or anything else that was ordered in the prior decree as to property.
To get the process started, you will have to file a Petition to Modify which lays out exactly what you want changed. If both parties are in agreement, then we file the new agreement with this Petition and the judge will usually order the new changes without hearings. If you are filing the Petition and the other party is not in agreement, then this Petition must be served on the ex-spouse
If you and your spouse are in agreement on the changes then you still have to go back to Court and have it ordered by the Judge if you want it to be legally binding. Post-judgment private modifications between you and your former spouse will have no legally binding effect on the decree signed by the judge. If you filed an uncontested divorce, you both signed a Settlement Agreement which remains in force until you actually get a new Order from the Judge changing it.
If you and your former spouse agree on the modifications, it can often be a fairly simple process to modify the terms of your divorce. If you do not agree on the modification terms, the dispute will have to be set for hearing. If the prior divorce decree involved a settlement agreement then it can be difficult to alter this. A settlement agreement is considered a binding contract. Thus, the judge is not usually inclined to let you out of that agreement (especially if the other party protests) without some compelling reason to do so. The more time there has been since the original agreement, the more likely it is the Alabama divorce modifications will be approved by the judge.
Child custody and child support are two common requests for an Alabama divorce modification. To change your custody terms you need to file a petition to modify in the original county where the original custody case was decided. Alabama Courts use the ‘best interest of the child’ standard when making initial custody determinations. If you file petition to modify custody, the judge will generally use something called the McClendon standard. According to this test, the non-custodial parent must show: 1) that a material change in circumstances regarding custody has occurred since the previous Order; 2) That it is materially in the child’s best interests to make the custody change; and 3) That the benefits of the change in custody will more than balance out the intrinsic disruptive effects which might result from this change.
There are many factors the court can consider in determining the test above. The Court can look at the child’s health, the child’s needs, the nature and relationship of the parties to the people around them, the respective home environments offered by the parties, the age of the parties, the mental and financial stability of the parties, the interpersonal relationships between the child and his/her parents, whether one parent has interfered with the child’s relationship with the other parent, and the wishes of a child. This list is not exhaustive, since the court may consider any evidence it wants. In other words, the judge can consider almost anything in determining the Mcclendon test.
If you want to change the alimony terms from your previous divorce, then you file a Petition to Modify with the Court that originally issued the previous Order. The Court must find that there has been a ‘material change in the circumstances of one or both of the parties’ to make this modification. Such a material change can be a change in income in either party, remarriage or a party, or employment changes of either party. The longer it has been since the alimony was first ordered, the better chance of success as well.
In just about every county, the Alabama divorce modifications are handled in the Domestic Relations Division of the Circuit Court of the particular county. Filing fees for modifications are usually over $300 and the clerks are not supposed to give you any legal advice if you try to file something on your own. Give our Alabama divorce modification lawyers a call today for more information about getting your prior order modified where you live.
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