Modification of Judgments and Orders in Orange County Family Court
Certain issues involved in a family law case may be the subject of modification proceedings after a judgment or order is entered by the court. Modification proceedings are often called post-judgment motions because they occur after a judgment or order has been entered. There are a number of reasons a party may want to file a motion to request the court modify a certain order or judgment in their Orange County family law case. The process of obtaining a post-judgment modification award can be extremely daunting, and our lawyers have extensive successes handling these cases. Don’t trust your important post-judgment to just any attorney, go with our law firm that has proven results! (Of course, we are obligated to make sure you know we cannot guarantee any result in any particular case.)
Modification cases begin with the filing of a motion, called a Request for Order (RFO). When an RFO is filed, a hearing date is set. If the issue of child custody and visitation is involved, the court clerk will also provide a “mediation” / “counseling” date for the parties to try and resolve their custody dispute before a court hearing. After the RFO is filed and a hearing date is set, the opposing party will need to be served with the motion in a timely manner. He or she must provide their responsive pleadings in a timely manner before the hearing. At the court hearing, the court will take evidence (discussed more below) and then issue a ruling.
For a guide to Request for Order hearings, click here.
Issues that may be subject to modification proceedings
There are a variety of issues that may be litigated in a post-judgment, post-order, or post-decree modification proceeding. Some of these issues include:
- Modification of child custody and visitation orders and judgments
- Modification of child support
- Modification of spousal support (in certain circumstances)
- Modification of domestic violence restraining orders (very rare, and only by stipulation of the parties)
- Modification of certain division of property orders
Depending on the issue involved, the court may or may not have the power to order a modification of the terms of the order or judgment. Some issues are “easier” to modify than others. For example, modification of child support is usually very straightforward and any change of circumstance will warrant modification (i.e. earning one dollar more or less in income technically qualifies as an acceptable change). The court will be mandated to simply calculate Guideline child support and will enter that order.
Other issues are much more difficult to modify. For example, spousal support judgments might be very difficult to modify because the court is obligated to weigh each of the Family Code Section 4320 factors before entering an order of modification relating to alimony.
How Modification of Stipulated Orders and Judgments differ from Modification of Litigated Judgments
There is a different legal standard relating to modification of some judgments depending on whether the original judgment or order was made after litigation or by an agreement between parties.
Stipulated orders and judgments may be modified upon the request of a party in certain situations. The same is true for modification of litigated judgments. However, the legal standards and presumptions applied to modification of agreements versus modification of litigated issues differs, sometimes significantly.
The reason is that with agreements, the court does not have any “background” of the parties’ unique circumstances and the reasons why parties agreed to what they did. With litigated issues, the court has already received most or all of the evidence relevant to a particular issue and therefore they already have a background of why an original order or judgment was entered. The easiest example to explain this theory involves child custody orders. Stipulated agreements can be modified after a party shows that any change of circumstance has occurred. With litigated judgments, a party will only be able to modify the child custody order if they can show a significantly changed circumstance warranting a modification. This rule is found in the Marriage of Montenegro case.
When Changed Circumstances is Required to Modify an Order or Judgment in Orange County Family Court
The general rule to apply when considering whether to file a post-judgment family law modification request is to always assume that a changed circumstance will have to be proven to the court.
Any changed circumstance could warrant modification in many situations, like when a person loses or changes a job when child or spousal support is an issue. Similarly, if a parent is charged with DUI, child abuse, or other criminal issue that would likely be grounds to modify a custody and visitation order. There are thousands of possible “changed circumstances” that could warrant modification of a divorce, legal separation, or paternity judgment or order. The analysis of whether the specific change is enough to warrant modification is very dependent on the facts of the case. Each case is treated differently.
Notably, there is one situation in child custody and visitation issues where a change of circumstances does not have to be shown, which is modification of “visitation” orders. A parent wishing to ask the court to modify a visitation order or judgment does not have to show a change of circumstance. However, as you might expect, showing some change that would warrant modification of the visitation order would be prudent for the party seeking the change.
When is Modification of Family Law Judgments Prohibited?
Judgments and orders that are “non-modifiable” cannot later be changed, even by the family law court in Orange County. Often, parties agree to “non-modifiable” judgments for spousal support and the court lacks the jurisdiction to modify such decrees. Additionally, certain issues that are included in a judgment or order may not later be modified because they are “final.” Such final judgments include issues like the division of community property. Once the parties agree to a division of property, or when a court makes a ruling dividing community property, those decisions and agreements are final and cannot be changed.
How do I modify an Order or Judgment?
Obtaining an order modifying a judgment takes careful planning over a period of time. We recommend taking the following steps to have the best chance to obtain an order of modification:
Step One – Prepare to show the changed circumstance
If you do not initially show that there has been some change of circumstances warranting modification, your request to modify an order or judgment might be summarily dismissed. Prepare a very clear outline of what changes have occurred since the entry of the previous order or judgment. Make sure that the changes are “significant” enough to warrant modification. For example, if you just obtained a child custody order three months prior and nothing has materially changed in that time, it is unlikely that the court will even entertain your request.
Step Two – Prepare your RFO motion
The Request for Order pleadings that you prepare are important. Take the time to ensure that the law permits your modification and prepare a Points and Authorities to outline the applicable law for the court in your case. Provide a detailed affidavit (called a declaration) that details what has changed since the previous orders. Your motion must be served on the other party in accordance with the law.
Step Three – Prepare for Court
Once you file a Request for Order, you will obtain a court date. On your court date, it is important to come prepared. Read our RFO preparation guide here. Be prepared to address the arguments that the other party made or will make at the hearing.
What do I do if I am served with a Request to Modify a Judgment?
Defending a motion to modify an order or judgment also should be carefully planned and executed. The primary initial focus should be on attacking the argument by the moving party that there has been a change of circumstances. Following these steps should help navigate the burden of responding to a motion to modify a family law judgment in California:
Step One – Hire an Attorney
It is almost always advisable to hire an attorney to help defend against a request for modification of a family law order or judgment. Make sure the attorney is familiar with family law and the specific issues sought to be modified. You can even hire an attorney just to give you legal advice if you want to represent yourself.
Step Two – Research the Law and your Judgment
Part of your defense will be to show that the motion lacks proof of a changed circumstance. There is significant statutory and case law that will apply to the motion involved in your case. Often a material and substantial showing of changed circumstances is required, and there might be cases specifically on point with the requested change in your case.
Similarly, thoroughly review your order or judgment. Make sure that you have read and understand all the provisions that might apply to the modification proceeding.
Step Three – File your response
After researching the law relating to the modification request, prepare a responsive pleading (form FL-320) to the Request for Order. Draft and file your points and authorities, and your written declaration opposing the motion. Serve your response on the other side.
Step Four – Attend the Hearing
As discussed above, you will want to make sure to be thoroughly prepared for your court date. Review our page dedicated to Request for Order Hearings in Orange County.
For more information about modification of family law orders, decrees and judgments, contact our office today right away.