No one wants to go back to court after their divorce or custody case is finished. But sometimes, you may have a good reason to modify a court order. Here's what to ask yourself to decide whether it is time to talk to a Michigan family law attorney about going back to court.

What Issue Are You Trying to Go Back to Court Over?

How easy or hard it will be to go back to court to modify an existing court order depends on what exactly you are trying to change. No Michigan family court judge will retie the marriage knot after a judgment of divorce is entered, but there are some issues that can be adjusted or changed altogether under the right circumstances.

Child-related issues, including child custody, parenting time, and child support, are the easiest to modify post-judgment. That is because the best interests of the children always take center stage. Sometimes, you can also modify spousal support provisions. However, Michigan will only rarely modify the property division or attorney fee award portions of a Judgment of Divorce. There are limited circumstances where the Court may set aside a property division, but they are rare and only apply within the first year or so after the judgment was entered.

Was Your Original Judgment or Order Entered by Consent?

It is also important to consider whether your original Judgment of Divorce was entered by consent or after a trial. If you and your former spouse came to a resolution about how best to resolve your divorce that means you both agreed to be bound by the terms of your consent judgment or settlement agreement. You may also have agreed to a “non-modifiable” spousal support award, which, as the name suggests, cannot be modified by either party after the fact.

Once those documents are signed, they are treated like contracts. That means you will only be able to have them set aside if they were entered into based on a clear showing of fraud, duress, or other misconduct by the other party. The most common of these rare circumstances is the concealment of marital assets. However, even in these cases, the terms of your consent judgment could make it hard to go back to court and get the judge to modify your prior agreement. You will want to work with an experienced Michigan family law attorney to prove why the original judgment should be set aside.

What Has Changed Since You Were Last in Court?

In child-related motions – including parental relocations – and spousal support modifications, your focus should be on a change of circumstances since the last order was entered. While the Michigan courts can also consider pre-existing situations under “proper cause,” it is unlikely to change its earlier decision unless there has been some new development. What this change in circumstances might be depends on what you are trying to change. However, you might need to go back to court if:

• For child support – the parties' incomes or the child's needs have substantially changed
• For spousal support – either party's income has changed or something not anticipated (like a motor vehicle accident) has affected the recipient's need or the payer's ability to pay.
• For conditions on parenting time – the condition is no longer necessary or in the child's best interest.
• For time, duration, or frequency of parenting time – the child's facts and circumstances – including normal life changes like school enrollment – have changed so the current schedule is no longer in the child's best interest.
• For child custody – a change in circumstances is materially affecting one or more of the best interest factors significantly enough to justify disrupting the established custodial environment.
• For parental relocations – the parent's job, education, or family situation is changing in a way that has the capacity to improve the parent and children's lives that outweighs the burden of the move out of state (along with other considerations)

Have You Tried to Resolve the Dispute Out of Court?

Even if you need to adjust an existing court order, you may not need to go back to court and start another round of expensive litigation. Often, when a court order isn't working, both parties agree something needs to change. This is especially true if the change you want to make is small, or if the performance of the existing court order is difficult or impossible. You can work with a Michigan family law attorney to negotiate a post-judgment modification order to be entered by the Court, or you can agree to mediate your dispute with a neutral facilitator.

What to Do if You Need to Go Back to Court

If your former spouse or co-parent won't agree to the change, you should meet with an experienced Michigan family law attorney to determine if you meet the court's criteria to modify the court order. If you do, they can help you go back to court to file the motion and prove why the change is necessary. Remember, though, if the Court agrees to set aside a property division or reconsider the children's best interests, it will consider the entire issue, not just the request you made. Your former spouse or co-parent may have complaints of their own. After a hearing, the adjustments could go either way – in your favor or against it. That is why you should be sure you have the evidence to support your claims and should consider out-of-court alternatives before heading back to court.

Get Help Modifying a Court Order from a Michigan Family Lawyer

At Bebout, Potere, Cox & Bennion, P.C., we care about you and your family. We help individuals and families in Rochester Hills, Rochester, Troy, Lake Orion, Oxford, Oakland County, Macomb County and throughout Southeast Michigan. We can help you decide if you need to go back to court, and help you modify your court order or judgment to meet your needs and your children's best interests. Call us at 248-651-4114 or contact us here to speak to an attorney.