As always, before reading this post please review my disclaimer by clicking on the above link or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
One of the most common questions I get after a support order is entered in a case, and that I used to get for custody/visitation orders when I handled those cases, is "so, what happens now?" This is quickly followed by a string of "so, what happens if a, b, c, x, y, and/or z happens?" You see, most people understand that support and custody orders can change, but have little comprehension of how. This is because the rules vary across types of orders and courts.
In today's blog post, I will discuss the basics of when and how support and custody orders change.
What court are you in?
As odd as it may seem, it does matter which court your case is in as of your last order. The rules vary somewhat between the Circuit Court and the Juvenile & Domestic Relations Court (for a primer on the differences between these courts generally, you can check out my series on our trial courts starting here). So, your first step is to figure out what court you are in.
If the order you are trying to change was entered in the J&DR Court, and was never appealed, you can be fairly confident that your case is still in the J&DR Court. If it was in the Circuit Court, however, you need to review the Order itself. If the Order contains a provision "remanding" matters related to custody and/or support to the J&DR Court, then you are in the J&DR Court. If it does not, you should still be in the Circuit Court, but check the court file to make sure no one later filed a motion to remand.
Once you know what court you are in, you can file a Motion to Reopen and Modify in the Circuit Court, or a Petition to Modify in the J&DR Court. In the Circuit Court, usually you will have to take care of serving the other side, and getting the case set for trial. In the J&DR Court, they will usually take care of that for you, although you need to check with your local court for their rules.
What kind of order are you trying to change?
The next inquiry is to figure out what kind of order you are trying to change. This is because the standards are slightly different between custody/visitation and child support orders on the one hand, and spousal support orders on the other. As you might imagine, the courts have long ago concluded that it is harmful to all parties involved if people can keep coming back to court and fighting over custody/visitation and support again and again. As a result, various standards have been adopted for determining if a modification should be allowed.
Custody/visitation and child support orders
For custody/visitation orders and child support orders, you have the "material change" standard. The rule basically is "has there been a material change in circumstances that warrants reconsideration of the current order?" It is the party moving for the modification who has the burden to prove that the answer is "yes."
There are several key phrases in here, however, to remember. First, the change must be material. In other words, it can't be minor. A parent missing one visitation session, or having their income go up by $10 a month is generally not going to be considered material. It must be something that actually alters in a noticeable way the reality that was in place when the previous order was entered.
The second key phrase is that the material change must warrant a reconsideration of the current order. A parent relocating, for example, is almost always a material change in circumstances for custody/visitation - but if their move does not alter the child's life significantly, it may not warrant a reconsideration of the award. In the child support context, there may be a material change in income levels, but, for example, a guideline deviation factor that had been used previously might still warrant keeping support the same. Note that a custodial parent intentionally, and without just cause, withholding visitation from the non-custodial parent which that parent is entitled to, is virtually automatically considered a material change in circumstances which warrants reconsideration of the current custody/visitation order.
Finally, it's important to note that even if you prove the material change standard, all that you've done is get the court to say "ok, we can reopen the issue." In other words, that's not the end of the inquiry.
Spousal support orders
Spousal support has its own set of standards as there are three basic types of spousal support orders (you can get more detail about this here). You can have spousal support ordered independently of a divorce (either in the J&DR Court or a Circuit Court Separate Maintenance Decree), you can have indefinite spousal support awarded as part of your divorce, or you can have spousal support for a defined duration awarded as part of your divorce.
For spousal support ordered independently of the divorce, the "material change" standard is used. However, there's also an important note to remember for such support - in some cases it ends automatically as soon as you are divorced. If your separate spousal support award comes from a Separate Maintenance decree, it ends as soon as you are divorced. If it comes from a J&DR case, it's status following a divorce is actually uncertain under the current caselaw, but it may very well automatically terminate as well.
For indefinite spousal support ordered as part of a divorce, the "material change" standard is used in the same way as custody/visitation and child support.
For defined duration spousal support, however, the amount and/or duration can only be modified (up or down) if the moving party proves either that (i) the "material change" standard has been met and that material change was not something reasonably foreseen at the time the support award was entered, or (ii) something the court anticipated would happen when it made the support order, and which was significant in the court making that order, has not happened through no fault of the moving party.
As you can see, defined duration spousal support is complicated to modify. Its "material change" standard is much harder to meet than the normal "material change" standard (since you also have to prove that the material change is not something that could have been foreseen at the time of the award - a very hard thing to prove), and its "something the court anticipated would happen" standard is also very difficult to show.
Like with custody/visitation and child support, however, once you've opened the door to modification doesn't mean that's the end of the case.
I've proven modification can happen... now what?
Once you've met whatever standard you need to in order to get in the modification door, the whole case essentially reopens. All elements need to be re-proven or agreed to. In all cases except indefinite spousal support from a divorce, the same standard is used in judging your modification hearing now as was used in judging the original hearing.
Now, this is where you have to be careful about picking your cases. Note that once this happens, it's actually possible for your situation to get worse. If you are seeking to reduce your child support obligation because the other side's income has gone up, but then it turns out that their work-related child care expenses have also gone up, it's very possible that support will actually increase. So, pick your modification motions carefully.
So, what does all of that mean? Well, for custody/visitation, the judge will have to go through all of the factors in Virginia Code Section 20-124.3 and can then make a new custody and/or visitation order as though the previous one never existed. Now, practically, that doesn't really happen because several of the factors themselves (for example, the parent that has been the primary caretaker of the child) are influenced heavily by the previous orders, but in theory, the judge rules as though he is ordering custody/visitation for the first time.
For child support, this means that the court must gather all information needed to determine the child support guideline numbers under Virginia Code Section 20-108.2, and then consider any deviations under Virginia Code Section 20-108.1(B).
For non-divorce spousal support, the court will again consider the needs of the receiving spouse and ability to pay of the payor spouse. For defined duration divorce spousal support, the court then must again consider all of the factors in Virginia Code Section 20-107.1(E) and, like with custody/visitation, make its award as though it was doing so for the first time (although, again, the previous award will affect some of the factors).
Indefinite spousal support ordered as part of a divorce is the only exception here. While the original award had to be made in accordance with the factors of Virginia Code Section 20-107.1(E), that's no longer the case at modification. Instead, Virginia Code Section 20-109(A) only says that the court may modify the award "as the circumstances may make proper." This language has been interpreted by the Court of Appeals to mean that an indefinite spousal support award from a divorce does not need to be decided based on the previously used factors, but rather the trial court judge now has discretion to make whatever changes he or she thinks are proper given the new circumstances.
Retroactivity
Now, for support orders, I often deal with clients who find out that their ex-spouse is earning substantially higher income months, even years after the fact. They typically want to get back the money that they paid or should have received for all of that time. Unfortunately, I have to be the bearer of bad news.
With two exceptions, child support and spousal support cannot be modified retroactively. In other words, the modification occurs as of the date of the new order, with only two exceptions.
The first exception is that, in recognition of how long the legal process may take, and to discourage intentional foot-dragging, the judge can, in his or her discretion, order that the modification be made retroactive as far back as the date that the other party was served with the modification motion. So, if your ex got her new income in June of 2012, you found out about it in June of 2013, you filed to modify and served those papers in August of 2013, and the hearing on the modification was held and the new order entered in April of 2014, the court could - again, this is the judge's choice - make the modification retroactive as far back as August of 2013, but no earlier, and the judge, again in his or her discretion, could make the new award retroactive only a month or two, or not retroactive at all.
The second exception concerns spousal support (all kinds) where the person receiving support has re-married. When someone receives spousal support, they have an affirmative duty in Virginia to inform the payor spouse of the re-marriage so that the payor spouse can stop paying - since, unless expressly agreed to otherwise in a property settlement agreement, a remarriage of the ex-spouse receiving support automatically terminates spousal support. In that case, where the payee spouse has failed in his or her affirmative duty to inform the payor of their remarriage, then the termination of the spousal support can be made retroactive to the date of the remarriage, and the payee can be ordered to reimburse the payor for all post-remarriage payments, plus interest.
Other than those two exceptions, however, that's it. No retroactive support - so you need to be proactive about finding out if you are eligible for a modification.
Conclusion
The law of custody/visitation, child support, and spousal support modification is very complicated, and can be virtually impossible to navigate without an attorney. If you have questions about a modification for a case you are involved in, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour!
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