Clients often think that once the divorce papers are signed, things will be set in stone for the future. However, the one constant in life is change. As changes happen, families often find themselves in need of a different arrangement with regard to the matters settled in divorce. Although post-divorce adjustments are common, sometimes they can be complex. Sometimes the post-divorce modification merely requires language changes or clarification, but sometimes the modifications are much more challenging.
At Batson Nolan, we understand the importance of creating solid documents which will protect the client in the future, but also understand what is required and necessary to make adjustments as changes occur. We are well-versed in addressing child custody and child support modifications as well as modifications to alimony obligations as the parties’ post-divorce circumstances evolve and shift.
Parenting Plan Modifications –
A parenting plan modification is a change to the existing custody order. In order to modify the custody or visitation in an existing parenting plan, there must first be a material change of circumstances which took place after the entry of the original parenting plan. The definition of material change for modification purposes is somewhat fluid, and differs depending on whether a change is custody (change of primary residential parent from one party to the other) or a change in the visitation schedule (the day to day schedule of the child) is in question. A material change could be something like a change in an employment schedule, a relocation of a parent, criminal charges against one of the parents, drug or alcohol dependency of one of the parents, or even the changing needs of the child as he or she grows.
The second prong of the modification test involves whether the material change makes a modification of the parenting plan in the best interest of the child. The burden is upon the party wishing to change the existing parenting plan to illustrate that a material change exists and that the modification of the plan is in the best interest of the child. At Batson Nolan, we understand the subtle case law differences between material changes for the purpose of custodial versus visitation changes and are prepared to advise and advocate accordingly. Often times, parties wish to make changes to the parenting plan because they did not fully think through the plan before they agreed, and are unhappy with the agreed upon plan. Once a plan is in place, it is very difficult to make changes. For this reason, it is important to ensure that the initial parenting plan is drafted correctly.
Child Support Modifications –
An existing child support order may be modified upon application of either parent, only if the court finds that a significant variance exists between the current child support obligation and the proposed child support amount. The child support guidelines define the significant variance as a fifteen (15%) percent variance in the child support obligation. This modification generally takes place when one of the parent’s incomes increases or decreases significantly. In the event of an income decrease of one of the parents, the court will determine whether the decrease is due to the parent’s voluntary underemployment or not.
In Tennessee, the child support obligation is calculated using a formula known as an income shares model. In the income shares model, the gross monthly incomes of each of the parents are entered into an equation, as are the number of nights per year that the child spends with each of the parents. The child support amount reflects credits that each parent may receive for medical and healthcare premiums and work-related child care expenses. The child support obligation may deviate upward or downward depending on the specific circumstances of the case. For example, the court may approve a downward deviation in the child support obligation if the obligor parent is paying for all private school tuition or all extra- curricular or sporting activities. Any deviation from the child support worksheet amount must be specifically outlined and approved by the court.
In instances in which the obligor parent has a very high income, the court may order an upward deviation in child support in the form of an educational trust. Courts will sometimes utilize this method in order to allow for private school tuition or post-secondary education of the child in high income families. It is important to note that in high income families, the amount of child support is capped at $2100.00 per month for one child. In cases in which an upward deviation is warranted, the upward deviation will be in the form of an educational trust for the child or children, rather than a cash windfall for the other parent. In Tennessee, trial courts have the discretion to order that the modification be effective as of the date the modification petition was filed, the date of the hearing on the modification, or any appropriate date in between.
Marital Dissolution Agreement (MDA) Modifications –
As a general rule, the distribution of marital property is final and is not subject to modification. This is why it is so important to make sure divorce documents are well-drafted. Despite this general rule, sometimes it is necessary to return to court if one party has not abided by the terms of the divorce agreement, or because the terms set forth in the MDA are unclear or ambiguous. It is not uncommon that the parties require the assistance of the court in determining the meaning of a particular provision, or in forcing a party to perform a task set forth in the divorce agreement.
At Batson Nolan, we are prepared to assist you in enforcing the terms of your divorce agreement or modifying the previous agreement if changes are required. We are prepared to provide clients with strong and effective representation in the event that the other party is not honoring the divorce agreement and is in contempt of a court order. We are prepared to argue the matter in order to ensure that you get what was ordered by the court.
As life changes, often times the ability to pay alimony also changes, and adjustments might be necessary.There are numerous statutes and case law that govern the modification of spousal support awards. This is one area of the MDA that is often revisited for a possible modification. At Batson Nolan, we are prepared to present your case and outline the changes which warrant a modification of a spousal support award. Sometimes that modification can be based on a change in employment, illness or a military service member electing to take a portion of his or her retirement in the form of a VA disability waiver. Modifications to spousal support are largely dependent upon the type of alimony awarded, the specific language of the original divorce documents, and the individual circumstances of the case.