Post-Decree Modifications & Reopening Property Division
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Have your circumstances changed since your divorce? Have you lost your job? Has your ex-spouse received a salary increase? Did your ex-spouse fail to disclose financial matters during the dissolution of marriage? Once your divorce is finalized, fortunately, not everything in your original separation agreement or parenting plan is set in stone. Courts recognize that circumstances change, and, sometimes, spouses hide income or assets during the divorce process. Depending on the exact circumstances of your case, you may have a variety of options post-decree. In the following sections, we explore your options in modifying maintenance, child support, parenting time, custody, and decision-making, as well as how you can reopen your property division.
Modification of Maintenance
Maintenance may be modified by either ex-spouse (either the one paying or the one receiving) by filing a Motion to Modify Maintenance in the court that heard your original case. The party seeking to modify maintenance must show “changed circumstances so substantial and continuing as to make the terms unfair.” § 14-10-122(1)(a), C.R.S. Proof of changed circumstances since the divorce decree, alone, is insufficient. There are different ways to satisfy this standard; however, the typical circumstances are job loss, reduction in hours, or the opposite direction—significant increase of income (of either party).
When considering whether to seek a modification of maintenance, it is important to first look at your separation agreement. When entering into a separation agreement in lieu of proceeding to a permanent orders hearing, the parties may agree to make maintenance “contractual, nonmodifiable.” If your separation agreement includes this language, then you will likely be unsuccessful in modifying maintenance, as your ex-spouse and you agreed at the time of the divorce that neither party would be able to modify maintenance. However, any effort to limit or preclude the court’s authority to modify maintenance must be articulated in language that is specific and unequivocal. In re Marriage of Rother, 651 P.2d 457 (Colo. App. 1982). If your separation agreement does not include this precise language, maintenance should be modifiable. For example, if the provision simply states that maintenance is “contractual” but not “nonmodifiable,” then maintenance is subject to modification. In re Marriage of Burke, 39 P.3d 1226 (Colo. App. 2001).
Modification of Child Support
Like modification of maintenance, child support may be modified by either parent “upon a showing of changed circumstances that are substantial and continuing,” by filing a Motion to Modify Child Support in the court that heard your original case. § 14-10-122(1)(a), C.R.S. This typically requires a showing of at least a 10% change in the amount of support which would be due per month pursuant to the child support guidelines. In re Marriage of Lishnevsky, 981 P.2d 609 (Colo. App. 1999). If the proposed modification results in at least a 10% change in the amount owed, a rebuttable presumption that the modification should be granted is created. In re Marriage of Aldrich, 945 P.2d 1370 (Colo. 1997).
This presumption, however, can be overcome. For example, in In re Marriage of Elmer, the father moved to decrease his child support obligation because his earnings had decreased. Yet, evidence at the hearing showed that the father was voluntarily underemployed. 936 P.2d 617 (Colo. App. 1997). As such, the court declined to decrease his child support obligation.
The 10% change in circumstances is not always a prerequisite to modifying child support. For example, in In re Marriage of Ford, the court considered the custodial parent’s medical condition, the resulting loss or her employment and medical expenses, and the likelihood that she would continue incurring extraordinary medical expenses. From this, the court found a substantial and continuing change of circumstances and awarded an increase in child support. 851 P.2d 295 (Colo. App. 1993).
Modification of child support can also be based on the ground that the current child support order does not contain a provision regarding medical support, including insurance coverage, payment for medical deductibles and co-payments, or unreimbursed medical expenses. Id.
Unlike maintenance, child support cannot be made nonmodifiable. As such, if your separation agreement or parenting plan contains language prohibiting the modification of child support, such language does not preclude you from doing so. However, before seeking a modification of child support, it is important to consider whether Colorado maintains jurisdiction. If the parents and the child(ren) still reside in Colorado, then jurisdiction is not a consideration. Yet, if any party moves outside Colorado, jurisdiction may be an issue, which can be quite complex. Thus, before seeking to modify child support, you should consult with an attorney.
Modification of Parenting Time, Custody, or Decision-Making
In order to modify parenting time, custody, or decision-making, the party seeking to modify must file a motion specifying what they seek to modify. §§ 14-10-129(1.5), -131(1), C.R.S. The first motion to modify following entry of your original divorce decree can be filed at any time; however, if a motion has been filed for a substantial modification of parenting time that would also change the party with whom the child resides a majority of the time, no subsequent motion to modify parenting time may be filed within two years after disposition of the prior motion, whether or not granted. § 14-10-129(1.5), C.R.S. The same two-year restriction applies to both a modification of custody or decision-making responsibility. § 14-10-131(1), C.R.S. The only exception to these two-year restrictions are where the current arrangement(s) may endanger the child’s physical health or significantly impair the child’s emotional development. §§ 14-10-129(1.5), -131(1), C.R.S.
In seeking a motion to modify parenting time, there are two separate considerations. First, if the modification would substantially change the parenting time and change the parent with whom the child resides with a majority of the time, in order to be granted, the court must find that a change has occurred in the circumstances of the child or the party with whom the child resides the majority of the time and that the modification is necessary to serve the best interests of the child. § 14-10-129(2), C.R.S. The statute further provides that the court must uphold the current parenting time schedule unless:
- The parents agree to the modification;
- The child has been integrated into the family of the moving party with the consent of the other party; or
- The child’s present environment endangers the child’s physical health or significantly impairs the child’s emotional development and the harm likely to be caused by a change in environment is outweighed by the advantage of a change to the child.
On the other hand, when a motion to modify parenting time is purely quantitative and does not seek to change the primary parent, the best interests of the child standard applies. In re Marriage of West, 94 P.3d 1248 (Colo. App. 2004).
In order to modify the custody decree or decree allocating decision-making responsibility, the court must find, on the basis of facts that have either arisen since the divorce decree or were unknown to the court at that time, that a change has occurred in the circumstances of the child’s custodian or person whom decision-making ability was allocated and that the modification is necessary to serve the best interests of the child. § 14-10-131(2), C.R.S. The court is required to retain the allocation of decision-making responsibility unless:
- The parties agree to the modification;
- The child has been integrated into the family of the party seeking the modification with the consent of the other party and such situation warrants a modification of the allocation of parental responsibility;
- There has been a modification in parenting time that warrants a modification of the allocation of decision-making responsibilities;
- A party has consistently consented to the other party making individual decisions for the child which decisions the party was to make individually or the parties were to make mutually; or
- The retention of the allocation of decision-making responsibility would endanger the child’s physical health or significantly impair the child’s emotional development and the harm likely to be caused by a change in environment is outweighed by the advantage of a change to the child.
Motions to modify parenting time, custody, or decision-making can be much more difficult than motions to modify child support or maintenance. This is partially because the court is required to begin with the presumption that the prior order should remain in effect and partially because there are different standards depending on the circumstances (“best interests” versus “endangerment”). As such, we recommend you have an experienced divorce attorney represent you in such matters.
Motion to Reopen Property Division
Under C.R.C.P. 16.2(e)(10), a party to a dissolution of marriage may seek to reopen the property division by filing a Motion to Reopen with the court. This statute provides that it is the duty of parties in a dissolution of marriage to provide full disclosure of all material assets and liabilities, and that if a spouse’s disclosure contains misstatements or omissions, the court retains jurisdiction for 5 years following the entry of the divorce decree to allocate material assets or liabilities. In order to succeed with a Motion to Reopen, the spouse’s omission or non-disclosure must materially affect the division of assets and liabilities.
For example, in In re Marriage of Hunt, 353 P.2d 911 (Colo. App. 2015), the husband failed to disclose financial information regarding his business, which, given the value provided by the husband at the time of the divorce, was the second largest asset in the divorce process. The Court of Appeals readily found that the husband’s nondisclosure of business financial information was material and, thus, granted the wife’s Motion to Reopen.
In proceeding with a Motion to Reopen, the court may first hold a hearing to determine whether the property distribution should be reopened, i.e., to determine whether the nondisclosure was material. Then, if the court finds the nondisclosure material, the court would hold a second hearing to determine the reallocation of the property division.
While the circumstances of your case may not be as extreme as the facts in In re Marriage of Hunt, the courts view nondisclosure of assets during a dissolution of marriage seriously. If you believe your ex-spouse hid or otherwise failed to disclose assets to you during your divorce, you should consult with a divorce attorney to determine whether seeking a reopening of the property division is warranted.
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