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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 07-02-2019, 12:12 PM
phatkid77 phatkid77 is offline
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Default Hereís an interesting question

Regarding filing a motion for change in circumstance..
Research says that itís rare they are granted as judges donít like to go against a court order..HOWEVER...
How does that apply for out of court, mutually agreed upon separation agreements?
Or are they basically blinding as a judge signs off on it?
Something thatís entered my head over the years
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  #2  
Old 07-02-2019, 12:19 PM
standing on the sidelines standing on the sidelines is offline
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Quote:
Originally Posted by phatkid77 View Post
Regarding filing a motion for change in circumstance..
Research says that itís rare they are granted as judges donít like to go against a court order..HOWEVER...
How does that apply for out of court, mutually agreed upon separation agreements?
Or are they basically blinding as a judge signs off on it?
Something thatís entered my head over the years
Thanks


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I would think it would be. If a judge signs off on it then I think that makes it a court order?
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Old 07-02-2019, 12:20 PM
phatkid77 phatkid77 is offline
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Yeah. Iím not sure if a judge signs off on it.
As I was typing it hit me that they may lol


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Old 07-02-2019, 12:21 PM
rockscan rockscan is offline
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From my husbandís experience...the judge kept saying as long as the separation agreement was signed and has not been changed then the agreement is binding until it changes.

Which means if you have a separation agreement, it is to be followed until there is a change. That change would result in a motion to change and would require a material change in circumstance.

What that material change is would be argued. For some it can be a denial of parenting time or a change in income or a change in the situation of the kids.
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Old 07-02-2019, 12:31 PM
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Janus Janus is offline
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Perhaps I'm misreading your post again, but from what I have read it seems that agreements reached on consent are very binding, because a judge is loathe to override that consent.

This assumes that there was no undue pressure, lack of disclosure, shenanigans, etc. etc.
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Old 07-02-2019, 12:48 PM
phatkid77 phatkid77 is offline
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Yeah. Misreading my writing wouldnít be a stretch lol

I would think a material change of circumstances would be finding accommodation where the the children have enough bedrooms for all would count...
I mean going from not being able to have your children over nite to having bedrooms so requesting some over nights would fall under this scope, but the water seems pretty damn murky regarding ďmaterial changeĒ.



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Old 07-02-2019, 09:28 PM
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Quote:
Originally Posted by phatkid77 View Post
I would think a material change of circumstances would be finding accommodation where the the children have enough bedrooms for all would count...
Material change is generally something that was unforeseeable. It was rather foreseeable that a parent could pick up an extra bedroom in the future. Anyhow, if one parent cannot afford accommodations, that does not stop shared custody since the wealthier parent should be paying CS.

Also, is there any written documentation showing that it was "lack of rooms" that led to the original custody situation? Did the separation agreement explicitly say "father does not have enough bedrooms and that is why mother is taking custody of the kids"?

How long has it been since the agreement was signed? Obviously, the longer it has been, the greater the probability of a "material change" argument.

You are right though, "material change" case law seems to be all over the map. It is very hard to predict.
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Old 07-02-2019, 09:36 PM
phatkid77 phatkid77 is offline
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No such wording that Iím aware of.
He pays like $1500. So had to save for the proper accommodation
Itís been about 1-1.5yr.
Itís ok for him to watch kids 9 days in a row when she asks, but he asking for 1 over nite during the week is too big a stretch lol



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