This practice area concerns post-decree matters wherein a "substantial change of circumstances" has occurred causing one party to return to Court to seek a modification of a previous Final Decree of Dissolution, a Final Judgment and Decree of Divorce, a Final Decree of Shared Parenting, a Final Decree of Legal Separation, or an Agreed Entry. Post-decree matters concern those happenings which take place after the parties' marriage has been terminated by divorce or dissolution or after their property settlement has taken place in the instance of a Legal Separation.
It is important to first determine whether the requested modification of support is related to child support or spousal support, formerly known as alimony. Why is this distinction so crucial? Because child support is always subject to further order of the Court until the minor child or children have been emancipated. Unlike child support, spousal support is not subject to modification or further order of the Court unless the terms of the parties' Final Decree (of Divorce, Dissolution, or Legal Separation) specify that the spousal support provision remains subject to further order of the Court.
Examples of Child Support Modifications
Example #1:
At the time of the divorce, both parents were working and child support was based upon the incomes of both parties. Two years pass and Father loses his position of employment as his company has decided to send all manufacturing jobs out of the country. Father would immediately file a Motion with the Court seeking a downward modification of his child support obligation. And, the matter would be subject to modification or further order of the Court and the terms of the Final Decree would be set for a hearing before the assigned Judge or Magistrate of the Court.
Example #2:
At the time of the divorce, Husband was employed and Wife was completing her nursing studies at Wright State University. Child support was determined based upon Husband having "x" amount of income and Wife having no income. Wife eventually completes her nursing degree, passes her State Board Examinations, and finds employment at a local hospital. Husband should now consider filing a Motion with the Court seeking a review of his child support obligation in light of the fact that Wife now has a job and earned income.
Example #3:
At the time of the dissolution, both parties were employed and, again, child support was based upon the incomes of both parties. Husband is later involved in an automobile collision which renders him paralyzed and unable to walk. Similar to Example #1 above, Husband would immediately file a Motion with the Court seeking a decrease in his child support obligation due to a substantial change in circumstances.
With the foregoing examples, child support will undoubtedly be modified due to the changes in the circumstances of the parties. And, the parties will have to make the change in circumstances known to the Court by filing the appropriate Motion with Notice of Hearing.
Examples of Spousal Support Modifications
When either party is seeking a modification of spousal support, it will be most important to return to the terms of the parties' Final Decree (of Divorce, Dissolution, or Legal Separation) to determine the language reflected in the provision relative to Spousal Support. I provide some examples of language which might be contained in the parties' Spousal Support paragraph or section of the Decree:
Example #1:
Spousal support shall commence on a date certain and continue for a term certain of five (5) years. Spousal support shall terminate earlier upon Husband's death, Wife's death, or Wife's remarriage. With the exception of the foregoing factors, spousal support shall not be subject to further order of the Court. If this language is reflected in the Final Decree, the spousal support award cannot be modified absent Wife's death, Husband's death, or Wife's remarriage. Even if the Husband ("Obligor") loses his position of employment or sustains a major decline in his health status, the Court does not have jurisdiction to modify the terms of the parties' spousal support provision.
Example #2:
Spousal support shall commence on a date certain and shall continue for an indefinite period. Spousal support shall terminate earlier upon Husband's death, Wife's death, or Wife's remarriage. In addition to the foregoing factors, spousal support shall remain subject to further order of the Court as to amount but not duration. This language would be used for a long-term marriage (twenty five (25) to thirty (30) years in duration) in order to be protective to Wife. But, the language permits Husband to seek a modification of the amount of spousal support in the event of his subsequent retirement or other change in circumstances.
The laws in Ohio have changed several times over the years regarding modification of spousal support. If the Decree was issued before May 2, 1986, the spousal support may still be modifiable based on a change in circumstances even if the language in the Decree doesn't indicate that the Court retains such jurisdiction. This information is intended as a general overview of this subject. Be sure to discuss the specific facts and Decree language regarding modifiability of any support obligation with your lawyer.
Post-Decree Property Modifications
Generally speaking, property division orders are not subject to further modification by the Court.
Example #1:
According to the language in the Divorce Decree, Wife decided she wanted to take the Corvette as her vehicle leaving Husband with the Honda CRV. Wife could not return to Court during the following winter and argue she now wanted the Honda CRV as the Corvette was not "safe" on icy and snowy roads. Wife would be "out of luck" as the Court would not have jurisdiction to modify the property (vehicles) division reached by the parties.
Example #2:
If Wife elected to retain the marital property and its associated equity in consideration of Husband retaining all of his retirement accounts and pension benefits, Wife could not later return to Court and argue that the property settlement should be modified because her residential property had sustained a loss of value while Husband's retirement accounts and pension benefits had sustained a substantial increase in value. Similar to the example above, the Court would not have jurisdiction to modify the property division related to the award of the marital residence to Wife and the award of pension/retirement benefits to Husband.
This information is, of course, intended as a general overview of this subject, but be sure to discuss the modifiability of any Court ordered obligation with your lawyer. The best advice is to select an attorney who is a seasoned practitioner of domestic relations law. The lawyer will always need to review the language in the Court Order and discuss the facts pertaining to the change in circumstances. There are some nuances which could result in differing outcomes than indicated in the illustrations above.
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If you have post-decree modification questions, please don't hesitate to call us at (937) 293-2141 to schedule an appointment. Or, if you prefer, you may email us by clicking here . Additionally, we have an emergency phone number, (937) 760-4357, that is answered by one of our divorce lawyers around-the-clock. The family law attorneys at Holzfaster, Cecil, McKnight & Mues are dedicated to protecting our clients' current and their long-term interests.
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