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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1  
Old 04-03-2017, 01:35 PM
bluewater bluewater is offline
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Default Final Order on consent

I have a Final Order on consent from August 2016.

I was just speaking to my lawyer and she seemed to think that a Final Order on consent does NOT require proof of material change of circumstances to be opened up. My impression was that it did, just like a Final Order set down by a judge. Are they not the same?

Does a Final Order on consent require a party wishing to alter it to prove a material change in circumstances?

Thanks in advance for all of your help. I can't believe the great advice and information I've discovered on this site!
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Old 04-03-2017, 02:28 PM
trinton trinton is offline
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A final order on consent is no different than a final order from a judge when it comes to proving a material change. That order is deemed to be correct on it's face, even though it may be royally f*ked in it's ass.

You'll need to prove a material change in circumstance regarding custody to change custody.

You'll need to prove a material change in circumstance regarding access to change access.

A material change in circumstance regarding child support will need to be proven in order to change child support.

All 3 issues would require a trial, unless the other party does not oppose that there has not been a material change. No term can be imposed without the consent of the other party, unless a trial is held.

If there is any indication that you had no independent legal advice when you consented to the order, or if there was duress, then you don't need to prove a material change.

If you try to move to set it aside under duress or no independent legal advice now, then they may wonder why it took you so long to move to change it if you had no independent legal advice. But it will be relevant at the hearing. It's not uncommon for a judge to look at provisions of an order and change it up when it is clear that one of the parties was taken advantage of, and for as long as it is in the best interests of a child to do so. It won't be easy, but it is doable with a good lawyer who has a good reputation.

On a case by case basis, a final custody order _CAN_ be changed without a material change if you can prove the current order is not in the best interests of the child

Some questions to ask your self:

What are the current terms of your order, to what terms do you want to change them to, and what do you believe has changed since that time ? Why is the current order not working out for your family anymore ? Why did you agree to it in the first place ?

Last edited by trinton; 04-03-2017 at 02:44 PM.
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Old 04-03-2017, 02:45 PM
bluewater bluewater is offline
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Trinton,

Thanks for your prompt reply!

We both had legal representation as well as mediation for for almost a year. I do not think she could argue duress, especially since she is the one who sent the offer.

I discussed the terms in a previous post on changing schools, but essentially they are this...
-shared custody
-50/50 nights on a set schedule
-S4 attends school in my area
-CS and SS settled
-property equalized

I am not seeking to change, it is my ex who wants to change his school. In reading the responses from my previous post it seems clear that she can't prove material change in circumstance to do this, I just wanted to clarify that you in fact had to prove it in the case of a Final Order on consent.
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Old 04-03-2017, 04:13 PM
trinton trinton is offline
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Quote:
Originally Posted by bluewater View Post
Trinton,



We both had legal representation

the terms

-S4 attends school in my area


I am not seeking to change, it is my ex who wants to change his school.
She (with counsel) agreed to a final order that the child attend school in your area. Now she has changed her mind and wants to change the child's school. I think that request should only be considered by you if the school was in your area. But you could still say no. If the school is outside of your area, then it is not in line to the court order or better yet to what _she_ agreed to with her lawyer. Either way, she cannot change the child's school without your consent. As it sits, the child is required to attend a school in your area.

I think you should send her this picture.


Last edited by trinton; 04-03-2017 at 04:26 PM.
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Old 04-04-2017, 12:34 PM
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Tayken Tayken is offline
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Quote:
Originally Posted by bluewater View Post
I was just speaking to my lawyer and she seemed to think that a Final Order on consent does NOT require proof of material change of circumstances to be opened up.
You may want to seriously consider getting a different lawyer if that was the lawyer's professional opinion.

An order, made on consent, is harder to disrupt than one that was ordered at trial. Judges hold consent orders in higher regard because it is what the parents AGREED TO. Which is the ultimate objective of the system. To have parents settle on matters.

The burden of proof to demonstrate a material change in circumstance falls on the applying party who is relying upon this material change.

Judges also go bat-shit-nuts when a party comes back only months after signing a FINAL order on CONSENT. You have to be forward thinking in family law and the other parent was not being that.

My advice to you:

1. Do not respond to any further communication from the other parent regarding a school change.

2. Do not respond to any letters the other parent's lawyer may send regarding a school change.

3. Only respond when an Application is made before the court to change the school.

Why? Because everything else is a waste of your time, money and energy. Parents often blow hot steam for years after matters settle. The only thing you need to respond to is an Application to the court.

Good Luck!
Tayken
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