Knowing how to modify a marital settlement agreement can ensure the settlement perfectly fits the ever-evolving needs of your family. This modification can happen either by mutual agreement between you and your spouse or by one spouse bringing a motion to change the settlement agreement if strong legal grounds for such a change exist. The steps in modifying a marital settlement agreement include identifying the provision(s) needing changed, negotiating with the other party, recreating a revised version of the agreement, and filing a signed copy with the appropriate court.
A divorce lawyer can help you draft a marital settlement modification that will be deemed fair to both parties, and keeps the best interests of the child in mind. The modification should be titled properly and clearly, this way it is easier for the court to enforce at a later date, if that becomes necessary.
What Is a Marital Settlement Agreement?
A marital settlement agreement is a written contract outlining the terms of divorce between two spouses (or ex-spouses). This contract becomes legally binding and enforceable once drafted and signed by the divorcing spouses and has been approved by the appropriate court.
One spouse can submit the agreement to the court for enforcement if the other spouse ignores or disobeys the agreement terms. The court may also include the agreement terms in the divorce verdict if it has not issued it already.
This agreement usually addresses divorce matters, such as child custody and visitation, spousal maintenance, child support, or property division. Property division can include any properties the couple may own, bank accounts and investments, and personal property. Some divorcing spouses can agree on all these issues on their own. They can meet and engage in meaningful discussions on these matters. Some can even draft a well-thought-out and detailed marital settlement agreement on their own. This is especially true for spouses with no marital property and no children.
The advice and support of a seasoned divorce attorney are, however, necessary if you have children or high-value marital property/assets. Your attorney will discuss your legal rights and duties as far as divorce-related issues, like child custody and support, are involved. The attorney will also ensure you clearly understand the role of contracts in divorce and any legal repercussions for not following the agreement once approved by the court.
Writing, editing, and modifying a marital settlement agreement are other areas an attorney can come in handy. Your attorney will ensure the modified agreement is acceptable in court and suits the unique needs of your split family.
Reasons for an Agreement to Be Modified
Illinois family laws recognize that the circumstances of individuals change from time to time. For this reason, they allow divorcing spouses (or divorced spouses) to modify their marital settlement agreements after experiencing unprecedented, significant changes. For the modification to be approved by the court, both parties must agree and show that the modification is necessary.
An attorney with many years of practice in family law can review your situation and determine if you are eligible for a settlement agreement modification. Generally, the following circumstance may result in modifications:
Changes in Income
A rise or drop in income is a justifiable ground for seeking settlement agreement modification. A judge will, however, consider the reason for the income change before granting the modification. The judge might, for instance, allow you to adjust your child support to a lower amount if you lost your job. The judge might also reduce alimony payments if the income of the recipient ex-spouse increases significantly. If your income increases, then the judge might increase the amount of child support that you are required to pay each month. Providing documentation with the modification is important to make sure that the amount that you are required to pay is fair to both parties.
Custody Issues
Changes in holiday timelines or new work hours/days can be sufficient grounds for modification. Relocation of a parent, if the distance can impact visitation, might also be a reason to revise the agreement so that both parties are still able to see their child. As children get older their needs will evolve, one example of this is educational needs. A child might attain an age where he or she wants to live with a specific parent full-time, requiring a revision of the custody agreement and child support payments. A change in the agreement could also be necessary when the child attains the age of the majority since child support will be reduced.
Risks to a Child
You can request a revision and change of a marital settlement agreement if you feel the current parenting arrangement puts your child at risk. Some examples include when a child gets abused or exposed to substance abuse, is neglected or misses school regularly. Another example is when one parent is ignoring or failing to meet the child’s basic needs if he or she is financially irresponsible.
When the court approves a marital settlement agreement, their main goal is to make sure that the child is taken care of, and tries to reduce any risk to the child’s safety and well-being. This includes making sure that any health or educational needs are being met and maintained, both financially and with parental support.
Divorce Settlement Violation
You have a right to request amendment of the marital settlement agreement if the other party acts in breach of the settlement agreement. You must, however, present sufficient and compelling evidence that the other party failed to honor the divorce terms outlined in the agreement.
You or your attorney may file a motion for enforcement to the court which describes the specific violations that are occurring along with the evidence. At this point, the court can modify the agreement, which may include taking away rights or privileges of the violating party. The court might also issue fines, require the violating party to pay the other party’s attorney’s fees, or even find the offending parent in contempt of court orders.
Fraud
Your divorce settlement might also be eligible for an amendment if you can prove fraud by the other party. If one party has hidden income, which leads to an unfair agreement on child support, has submitted falsified documents, or did not disclose a criminal background that can impact a custody arrangement. A court may grant a modification request if you present evidence that the other party presented misleading information to gain an advantage in the division of assets or financial responsibility.
Other circumstances that can result in settlement agreement modifications include:
- One party developing a disabling condition or disability
- A child needing additional care
- College tuition was not included in the original marital settlement agreement
- One party receiving a personal injury settlement
- One spouse (or ex-spouse) relocates to another state with court permission, causing the child to incur additional travel costs. In this case, the noncustodial parent can file for visitation rights and request settlement agreement amendment.
Steps to Modify a Marital Settlement Agreement
Identifying the Specific Term (or Terms) Needing Changed
The first step in modifying a marital settlement agreement is identifying the term (or terms) that needs to be updated.
Negotiating With the Other Party
Contact the other party to discuss the term (or terms) in the settlement agreement requiring amendment. You should, however, be ready to compromise to reach a mutually acceptable deal. As both parties will need to agree on any changes before the court will grant approval.
Creating a New Version of the Marital Settlement Agreement
Ensure the amended term (or terms) are captured and outlined clearly in the agreement to both parties. You can do that by creating a new marital settlement agreement. Alternatively, you can create an amendment agreement and insert it into the original agreement. Doing that will help prevent confusion down the road and allow the correct document to be enforced by the court.
Choose an Appropriate Title for the Amended Agreement
Change the title of the amended agreement to specify that it is a modified version. This change will also specify that the modified version is the agreement currently applying to issues between you and the other party. You can, for instance, caption the modified version as “First Modified Marital Settlement Agreement.” The title can also be named after the specific change that is being addressed in the agreement.
File a Signed Copy With the Relevant Court
Prepare three copies of the modified agreement. You and your spouse (or former spouse) should sign all three copies. File one copy with the court that heard or is hearing your divorce case so that the modification can be approved and enforced. Retain one copy and give the other one to your spouse (or former spouse). This way, both parties will have a copy to refer to if there are any questions or additional changes that might need to be addressed in the future.
