Varying (Changing) Your Divorce Order or Separation Agreement

“Can I change the terms of my divorce order or separation agreement?”
Yes, under certain circumstances:

  • -you can change the child support provisions if there has been a change in circumstances

  • -you can change the child custody, access, life insurance, spousal support and most other provisions if there has been a material change in circumstances

The property division provisions cannot normally be changed.

“What is a material change in circumstances?”
Once there is a divorce order or separation agreement, the law does not want you to keep trying to change things, unless there is a very good reason. So, not just any change is ground to vary – it must be a fairly substantial change. As well, the change must have occurred after the divorce order or separation agreement. Your best bet is to consult with a family law lawyer to check this has occurred in your case.

“How far back can the change be made?”
Generally, the rule is that the court will only make a change as of the date legal proceedings were started. This is a rule of thumb, and not a rule of law. If you can convince a judge that there was a good reason for the delay in commencing legal proceedings, then a judge may make the change effective on an earlier date. Examples of this are where a new fact came to light that you tried to discover, but was hidden by your ex, or where you were unable to afford a lawyer.

“My spouse has custody of the children. Can I get child custody?”
This can be very hard to do. Generally, the court favours stability, and will not want to change a child custody arrangement. Some exceptions to this are cases where one parent wants to move away with the children, or a teenage child decides to switch residences.

“What are some examples of a material change in circumstances for which child custody would be changed?”
Things such as serious neglect by the custodial parent, a significant drop in the child’s grades, or the child developing significant psychological problems.

“I have joint custody, but the other parent is never involved in the children’s lives. Can I get sole custody?”
Maybe, but ask yourself whether it is really worth the trouble. You’ll spend thousands of dollars (if not tens of thousands of dollars) in legal fees and put yourself and your children through a very stressful experience. If the other parent is not involved in the children’s lives, will the sole custody order really make a practical difference?

“I think my ex is earning more, and should be required to pay more child support. How do I find out my ex’s income?”
You can start by asking for your ex’s recent income tax returns. However, most of the time, these requests are ignored. To force your ex to disclose his or her income, generally it is necessary to start legal proceedings. Of course, if your ex’s income has not really changed much, this could be a costly exercise with little result.

“My child support order was made before the guidelines were enacted. Can I change my child support?”
Yes, the enactment of the guidelines is considered sufficient grounds by the court to change child support. There does not need to be a change in the payor’s income.

“Can spousal support be reduced because I’m earning less?”
Maybe. It depends on a lot of factors, including why you are earning less, what your divorce order or separation agreement states, what roles were assumed by each spouse during the marriage, and what changes there have been in your ex-spouse’s income. Note that a court is permitted to impute income to you. This means that if a judge believes that you have purposely reduced your income, the judge can order spousal support on the basis of your old income.

“Can spousal support be stopped because my former partner remarried?”
Maybe. This depends on many things, including the basis on which spousal support was originally awarded. If, for instance, spousal support was awarded because there was a large disparity in your and your partner’s income – and your partner’s new spouse has a good income – then you may be able to reduce spousal support. If, however, spousal support was awarded to compensate your ex for the role assumed during the marriage – for instance, giving up a career to look after the children and a household, then it will be a lot harder to end spousal support.

“I’ve remarried and have a new family to support. Can I reduce my child support or spousal support obligations?”
Generally, no. The law regards your first family as paramount and you can’t reduce your financial obligations to them just because you have a second family.

“Can a temporary (interim) order be varied?”
It is more difficult to change a temporary (interim) order than it is to change a final order. This is because a temporary order is there to tide the spouses through to trial or to the resolution of the case. So, in addition to showing a material change in circumstances, you also must show that there is a good reason no to wait until the trial or resolution of your case. The change would need to be fairly dramatic – the most common one I’ve seen is where one spouse loses their job and child support or spousal support is at issue.

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