At best, a divorce or paternity order takes a snapshot of a family’s current emotional and financial makeup. These things change so quickly that, in many cases, the order is outdated no more than a year later. Especially if the changes are “minor,” such as adjusting a pickup or drop-off time, many parents make informal side agreements. Normally, ironing out such issues without getting lawyers involved is a good idea. But such side agreements are generally unenforceable in family courts.
Therefore, at some level, a Marietta family law attorney must be involved in the family law modification process. Sometimes, a lawyer must only present agreed paperwork to a judge, who thereupon makes it part of the official record. Sometimes, a lawyer must advocate for parents in court. Both residential and nonresidential parents have important legal rights in custody, support, and other modification matters. Most of the time, the role of a Marietta family law attorney is somewhere between these two extremes.
Reopening a Divorce in Georgia
Before we go further, a few words about the mother of all divorce modifications, which is overturning the divorce itself. The modifications discussed below, which are extremely common, basically change the terms of a divorce or other order. Reconsideration, which is almost unheard of, basically nullifies the original order. Georgia law permits reconsideration in three situations:
- Fraud: The situation we see most often is an unscrupulous Marietta family law attorney sneaking language into a proposed order or other such document. For example, Lawyer A sends a proposed order to Lawyer B, who edits the document and then files it with the court.
- Mistake: People sometimes get married unintentionally (by mistake), a troubling issue that’s the subject of another blog. But they almost never get divorced by mistake. Theoretically, Fran might think she was signing an acknowledgement of service instead of a waiver of citation, but such mistake claims are very difficult to prove.
- Negligence: In the wake of the 2008 housing market collapse, solitary employees at large mortgage service companies approved more than 10,000 foreclosure affidavits per month. They approved them without reading them. On a much smaller scale, robo-signing sometimes occurs in Cobb County courts.
The divorce reconsideration statute of limitations is usually three years. After that, the marriage dissolution provision of a divorce order is set in stone, regardless of how fraudulent, mistaken, or negligent it may have been.
Custody/Visitation Modifications
Reconsiderations are as rare as whooping cranes, partially because the law is so narrow, and partially because they’re usually a waste of time. If a judge overturns one divorce, the original petitioner usually files a do-over divorce.
Custody and visitation modifications, on the other hand, are as common as brown thrashers, which, if you’re keeping score at home, are the most common birds in Georgia.
Location-based child custody modifications might be the most common alterations. In large metro areas like Marietta and Cobb County, a move to an address in another Zip code usually throws the delicate pickup/drop-off schedule completely out of whack. Onset or removal of parental disability (Dad gets hooked on pain pills or Mom beats an alcohol problem) are a close second.
In these situations, the judge will modify visitation and perhaps custody if the change is in the best interests of the child. Some factors to consider include:
- Child’s preference, which is usually subject to judicial approval,
- Indirect parental preference (e.g. Dad misses a few scheduled visits),
- Direct parental preference (Mom and Dad sign an agreed motion to modify),
- Child’s needs, and
- Child’s environment.
That last bullet point, which may be the most important best interests’ factor, needs additional explanation.
Custody modifications are uncommon because most judges hesitate to disrupt the status quo, especially if the child is under 12. Whether they admit it or not, children that age need predictable routine.
Visitation modifications must be in the best interests of the child, not the best interests of the parent. For example, if Dad gets a promotion, he may want to take Junior and move to Florida. The move is clearly in Dad’s best interests, but it may or may not be in the child’s best interests.
Spousal Support Changes
Changed financial or emotional circumstances could prompt alimony modification. Changed financial circumstances must be significant, permanent, and unexpected. Let’s break those down individually.
As a rule of thumb, a significant change is usually a 10 percent up or down income change. Raw numbers are the best evidence on this point. In absence of W-2s or tax returns, a significantly different lifestyle, either better or worse, may be sufficient. A significant failure to follow a rehabilitation plan falls into this category as well.
Permanent and unexpected mean just that. The income change must be a promotion or demotion at one job or a new job with a substantially different salary. If the person is self-employed, a six-moth trend of lower or higher income may be enough. The obligor’s retirement is an example of an expected income change. A judge may reduce alimony payments in these situations, but it’s an uphill fight for a Marietta family law attorney.
Child Support Modifications
Police officers, like everyone else, must act within the law. For a free consultation with an experienced Marietta personal injury lawyer, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.
