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dupage county child custody lawyerAddressing matters related to child custody is often one of the most difficult aspects of getting a divorce. Unmarried parents may also need to address this issue, and both parents may be looking to determine how they can share custody of their children. In Illinois, joint child custody is generally presumed to be in the child's best interests unless there is evidence showing that it would not be. However, understanding exactly what joint custody entails is not always easy, and parents will need to be aware of how legal and physical custody are addressed in Illinois law.

Understanding Joint Child Custody

When matters involving child custody are addressed in family courts, the decisions made will usually be separated into two distinct categories, commonly referred to as legal and physical custody. Legal custody, which Illinois law refers to as the "allocation of parental responsibilities," refers to decision-making power for things like education and medical care. Physical custody is known as "parenting time" in Illinois, and it includes any time that children spend in the care of a parent. Physical custody will address where children will primarily live and when they will stay in each parent's home.

In cases where parents have joint legal custody, each parent will have a say in making decisions about how their children will be raised. Depending on a family's unique circumstances, different areas of responsibility, such as decisions related to medical care or education, may be the primary or sole responsibility of one parent. However, regardless of how parental responsibilities are allocated, each parent will be able to have reasonable amounts of parenting time. A parent's rights to parenting time may only be restricted if there is compelling evidence showing that this is necessary to protect the children's best interests.

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IL divorce lawyerOriginally published: April 30, 2020 -- Updated: September 14, 2022

Update: The right of first refusal, as discussed below, may address situations where one parent is unavailable to care for children during their scheduled parenting time. However, if these situations occur frequently, and a parent is regularly unavailable to address children's needs when required, the other parent may believe that it will be necessary to modify their child custody agreement and ensure that children will be able to have the care they need from a parent going forward. By understanding the requirements for post-divorce modifications, a parent can make sure these situations will be addressed correctly.

Modifications to the allocation of parental responsibilities or parenting time will usually only be allowed if there has been a significant change in circumstances since the original child custody agreement was put into place. There are multiple factors in the lives of parents or children that may be changes that are considered significant enough to warrant a child custody modification. For example, if a parent has found a new job with different hours, and they now require a babysitter or family member to pick children up from school and care for them during the evenings, the other parent may ask for their parenting plan to be modified so they can care for the children during these times. 

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dupage county legal separation lawyerNo marriage is perfect, and married couples may encounter relationship issues for a variety of reasons. Some common factors that can lead a couple to grow apart include disagreements about finances or how to raise children, changing priorities that cause a couple to be incompatible, or extramarital affairs. For those who believe that they can no longer make their marriage work, divorce may be the best option. However, many couples are not ready for this permanent, final step, and they may first wish to separate on a trial basis. In other cases, a couple may prefer to stay legally married, even if they no longer wish to have a close relationship or live in the same home. This will allow them to maintain certain benefits and avoid the stigma of a divorce. In these situations, legal separation may be the ideal option.

The Process of Legal Separation in Illinois

For married couples who live in Illinois, a legal separation is handled in a very similar manner as a divorce. The process begins when one spouse files a petition for legal separation with the court in their county of residence. Once the paperwork is filed, the other spouse will be served with the petition and given 30 days to file a response. If both spouses agree on the terms of their legal separation, they can sign a separation agreement that will be submitted to the court.

A separation agreement will need to address multiple issues related to the couple's marriage and separation, including:

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illinois child custody lawyerWhen parents get divorced, they may put child custody arrangements in place to ensure they can be closely involved in raising their children. Maintaining strong parent/child relationships in the years following a divorce can be crucial for a child's well-being. However, these relationships may be affected by a parent's decision to relocate to a new home. If a parent plans to move with their children to a different city or state, and this relocation would impact child custody or parenting time, the parent will usually need to request a post-divorce modification. By understanding the specific laws in Illinois that govern parental relocation, parents can determine their options for resolving disputes in these situations. 

When Are Parental Relocation Requests Necessary?

A move to a new home by a parent will only be considered a “relocation” in certain circumstances. A relocation request may be made by a parent who has been allocated the majority of the parenting time with the couple’s children, meaning that children live primarily in their home. These requests may also be appropriate in cases where children spend an equal amount of time with both parents. Parents will need to request approval for a relocation in the following circumstances:

  • A parent currently lives in one of the counties in the Chicago area (DuPage, Kane, Will, Cook, McHenry, or Lake), and they will be moving at least 25 miles away based on the driving distance determined using an internet mapping service.

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oakbrook terrace prenuptial agreement lawyerA prenuptial agreement, or prenup, can be an important legal document that protects married spouses. As a contract between two parties who are planning to get married, a prenup will detail how different issues will be handled if the couple chooses to get a divorce in the future. Typically, a prenuptial agreement will be limited to addressing financial issues, such as property division or spousal maintenance. A prenup can provide both parties with the assurance that certain issues will be handled correctly if their marriage ever ends, and it can remove the possibility of conflict by resolving some disputes ahead of time. However, to avoid disputes related to the terms of an agreement, it is important to make sure a prenup will be valid and enforceable.

Addressing Concerns About Prenup Enforceability

A prenuptial agreement is a legal contract, and both parties will need to be sure they fully understand all of the terms of the agreement and have the mental capacity to make sound decisions about financial matters. Once a prenup has been signed, and a couple has been legally married, its terms will usually be enforced in the event of a divorce. However, there are a few rare situations where a prenup may be determined to be unenforceable.

In some cases, a prenup may be found to be invalid because one spouse did not sign the agreement voluntarily. In some cases, a spouse may have signed an agreement due to coercion or duress, which may include threats to end the relationship or pressure related to social or religious norms. This can sometimes be an issue in Islamic marriages, and the payment of a mahr or dowry will sometimes be accompanied by a request to sign a marriage contract that may function as a prenuptial agreement. In these cases, a spouse may feel that they have no other option but to agree to the other spouse’s terms, even if this would put them in an unfair financial position. Demonstrating that coercion occurred can sometimes be difficult, and a person who signed an unfair agreement may end up being bound to its terms.

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dupage county spousal maintenance lawyerWhen a married couple splits up, they will often need to make significant changes to the ways they handle financial issues. A couple that had combined their finances, deposited income into joint accounts, and worked together to pay bills and other expenses will need to separate their finances and determine how they will each be able to pay various costs on their own. While this process can be complicated and difficult, spouses will usually be able to make adjustments to ensure that they will each be able to live comfortably on a single income. However, there are some situations where one spouse may be unable to fully support themselves after their divorce, such as when a stay-at-home parent did not work outside the home during their marriage. In these situations, one spouse may believe that they should receive spousal support from the other. By understanding when a spouse may qualify for this form of support, a couple can ensure that this issue will be handled correctly during the divorce process.

Factors Considered in Decisions About Spousal Maintenance

Spousal support is known as spousal maintenance in Illinois, although it is often referred to as alimony. It is important to understand that even if the need for support seems obvious (such as when one party relies primarily or solely on the other party’s income to meet the family’s needs), maintenance will not be awarded automatically. A spouse who believes they need financial support will need to request it, and they must demonstrate that this support is necessary to meet their ongoing needs and maintain the lifestyle they were used to while they were married.

Illinois law details a number of factors that may play a role in determining whether a spouse is eligible to receive spousal maintenance, although a judge may consider any issues that may affect the parties’ ability to reach a fair and equitable outcome for their divorce. The specific factors that a judge should consider include:

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oakbrook terrace child support lawyerIn most family law cases involving children, child support will be ordered. Child support is usually a factor when parents choose to divorce, but it may also need to be addressed in situations where parents are unmarried. This form of support is not meant to benefit or penalize either parent, but it is instead a right that is afforded to children so that their ongoing needs will be met. Parents will need to understand how child support payments will be calculated, and depending on their unique circumstances, they may also be ordered to contribute to additional expenses on top of child support ordered by the court.

How Parents May Share Children’s Expenses

Child support obligations are determined based on the income earned by each parent, and in some cases, the parents’ respective amounts of parenting time may also factor into these calculations. This “basic support obligation” is intended to cover children’s daily needs, and the parent who receives payments may use them to address the costs of food, clothing, and housing. However, there are usually other costs involved in raising children, and in addition to the basic obligation, expenses such as the following may need to be added to this amount:

  • Health care - Parents must ensure that their children will be covered by a medical insurance policy. Most of the time, coverage will be available through health benefits provided by one parent’s employer. When obtaining coverage, parents may calculate the amount that will be paid to provide coverage for children, and one parent may be required to reimburse the other for a portion of this amount. Other types of health care costs not covered by insurance may also need to be addressed, such as co-pays for doctor visits, medications, and any medical equipment or assistive devices that are needed.

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dupage county child custody lawyerParents may become involved in child custody disputes during a divorce or the breakup of an unmarried couple. In these situations, making decisions about how parents will share legal custody and divide parenting time can be difficult. When addressing these issues, it is important to understand how the laws in Illinois may affect a case. Even if a couple plans to negotiate a parenting agreement rather than resolving disputes in the courtroom, knowing how the law addresses their situation can help them make the right decisions. One issue that may play a role in these matters is the way parents have handled and expect to continue handling “caretaking functions” for their children.

What Are Caretaking Functions?

Parents will engage in a number of activities as they provide care for their children, ensure that children’s needs are met, and help children grow and develop successfully. Illinois law details a number of these caretaking functions, and it states that parents are responsible for engaging in these functions during their parenting time. When determining how to allocate parenting time between parents, one factor that may be considered is how each parent has been involved in caretaking functions for their children during the two years immediately preceding the initiation of a divorce or child custody case.

Caretaking functions include:

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IL divorce lawyer

Originally published: February 16, 2021 -- Updated: May 25, 2022

UPDATE: Below, we look at how the divorce laws may address attempts by a spouse to hide or conceal assets prior to or during their divorce. However, it is also important to understand how the law addresses the dissipation of marital assets. Dissipation is the use of marital property for non-marital purposes after a marriage has begun to undergo an irretrievable breakdown. Asset dissipation can take many forms, including cases where a spouse spends money on an extramarital affair, such as by taking vacations with a lover or buying them gifts. However, it may also involve purchasing items or using marital funds for a person’s sole benefit, spending money on a drug or gambling addiction, or purposely destroying property with the intent of harming the other spouse.

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child custody lawyer in skokieThere are a multitude of different issues that will be addressed during a couple’s divorce, and at the end of the legal process, a divorce decree or judgment will be issued. This final order is meant to remain in place indefinitely, and it will address how certain issues will be handled going forward. For couples who have children, their divorce decree will include a child custody order, which is sometimes referred to as a parenting plan. There are some cases where these orders may no longer adequately address a family’s needs, and based on changes that have occurred, either parent may request modifications of their parenting plan. By understanding the requirements they will need to meet for modifications to be granted, parents can make sure they approach these cases correctly.

Post-Divorce Child Custody Modifications

Generally, modifications to the allocation of parental responsibilities (also known as legal custody) may not be made within the first two years after a couple’s divorce, unless there is reason to believe that issues have arisen that may affect a child’s physical or emotional health, such as abuse against a child by a parent or another person in their household. Modifications to parenting time or physical custody may be made at any time if the court determines that they are necessary. Parents may also agree to make modifications to legal or physical custody at any time, and these modifications will generally be allowed, unless the court determines that they are not in the children’s best interests.

In most cases, a parent who requests a modification will need to show that there has been a significant change in the circumstances of themselves, the other parent, or the couple’s children. Some valid reasons for modifications may include:

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skokie divorce lawyerIssues related to the property a couple owns are often some of the most complex factors that need to be addressed during the divorce process. While multiple types of assets and debts need to be considered during the property division process, determining how to handle ownership of a family business will often be one of the most consequential decisions. Whether a business is considered to be marital property because it was founded after the couple’s marriage or separate property that a spouse owned before getting married, it will be essential to perform a business valuation to determine the value of this asset.

Business Valuation Methods for Divorcing Business Owners

It will be important for both spouses to make sure a business will be handled correctly during their divorce. A family-owned business may be a source of income for one or both spouses, or it may represent a large portion of the couple’s total assets. Even if a business is a separate asset solely owned by one spouse, it will be important to determine the value of this asset to ensure that both spouses have an understanding of their individual financial resources. This can not only ensure that marital property will be divided fairly and equitably, but it may also help determine whether spousal maintenance will be appropriate. 

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dupage county divorce lawyerDuring a divorce, matters related to a couple’s children can often be some of the most complex and difficult issues to resolve. Disagreements about raising children can be a significant factor that leads to the breakdown of a marriage, and these arguments may continue throughout the divorce process as parents determine how they will share parental responsibilities going forward. How parents cared for their children, made decisions, and handled family responsibilities during their marriage may be a significant factor in child custody cases. Some parents may believe that the ways they acted while married should determine the role that they will play in their children’s lives following their divorce, while others may feel that it is best to leave the past in the past and find new solutions as they move forward. When parents encounter disputes about issues related to the custody of their children, they will need to understand how the law may address their previous actions and behaviors.

Factors Considered When Determining Children’s Best Interests

While each parent may have an idea of how they would like child-related issues to be handled following the end of their marriage, the wishes of the parents are not the most important concern in these cases. Instead, family courts will focus on finding solutions that will provide for children’s best interests. Decisions about child custody will be made based on what will allow children to thrive, avoid disruptions to their lives, receive the proper care and education, and maintain positive relationships with both parents.

Child custody cases generally address two types of custody, commonly known as legal custody and physical custody. In Illinois, these are referred to as the allocation of decision-making responsibilities and parenting time. Decision-making responsibilities include the rights and obligations of each parent to determine how important issues related to their children will be handled, including the medical and personal care children will receive, their schooling and education, their religious activities and practices, and extracurricular activities children will participate in. Parenting time, which is sometimes referred to as visitation, is the time children will be in the care of each parent. A schedule will be created detailing when children will stay in parents’ homes or visit them in other locations, including on regular weekdays and weekends and on holidays, school vacation days, and other important dates.

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dupage county divorce lawyerWhile spousal maintenance (which is more commonly known as alimony, but may also be referred to as spousal support) is not a factor in every divorce, it may be an important issue to address in cases where one spouse earns a significantly higher income or where one spouse has been a stay-at-home parent. Spousal maintenance will only be paid if a couple agrees on this form of support in their divorce settlement or if one party demonstrates to a judge that it is necessary based on the factors outlined in Illinois law. Understanding the options for paying spousal maintenance, including making a lump sum payment or monthly support payments, can help spouses determine the best ways they can each succeed financially once their divorce has been finalized.

Options for Paying Spousal Maintenance

The purpose of spousal maintenance is to provide a person who earns a lower income with financial support that will allow them to maintain the same standard of living the couple had during their marriage. The amount that will be paid will be determined using a formula that is defined in Illinois law.

In most cases, if maintenance is appropriate, it will be paid monthly for a specific number of months. This number of months is determined based on the total amount of time that a couple was married, starting on the day of their wedding and ending on the date their divorce decree is issued. If temporary maintenance is awarded to one spouse and paid in the period between when the divorce petition was filed and when the divorce was finalized, these payments may be credited toward the total duration for which spousal maintenance will be paid.

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shutterstock_1456860602-1.jpgWhen a court issues a child support order as part of a divorce or family law case, a parent will be required to pay support as ordered. This support is meant to ensure that children’s ongoing needs will be provided for. Since failure to pay support may affect children’s ability to receive the necessary nutrition and have a safe place to live, judges will not look kindly on a person who has not met their obligations. 

However, there are many situations where a parent may find it difficult or impossible to pay child support as ordered while also meeting their own needs. This has been a significant concern for many during the COVID-19 pandemic. Those who have lost their jobs may have struggled to make child support payments while also paying for their own living expenses. The situation may be even more serious for parents who have contracted Covid, and in addition to being unable to earn an income while recovering, some have experienced ongoing health issues that have affected their ability to work and made it impossible for them to provide financial support for their children.

While courts may recognize that a person has experienced difficulties in their life, a parent will be legally obligated to meet the requirements of a child support order as long as it is in effect. In addition to making ongoing payments, any missed payments will need to be made up, and interest will be applied to the past-due amount. Failure to pay child support can also lead to a number of other penalties, and in some cases, a judge may decide to hold a person in contempt. This could lead a judge to put a parent on probation or suspend their driver’s license, or the parent may even be sentenced to up to six months in prison. During a prison sentence, arrangements may be put in place allowing for release at certain days and times to ensure that a person can work, with some or all of the income they earn going toward child support payments. 

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shutterstock_30671707.jpgWhen a couple chooses to get a divorce, they will need to address multiple types of issues as they legally dissolve their marriage. Property division is one area that can is often disputed since both spouses may want to keep certain items, and they will both be looking to make sure they will have the necessary financial resources to live on their own. Disagreements in this area can become even more contentious if either spouse believes that the other has depleted the marital estate by wasting money or destroying property. This is known as “dissipation of assets,” and in these cases, spouses will need to be sure to understand how Illinois law addresses this issue.

Understanding Asset Dissipation

Dissipation of assets can take a number of forms, but it generally involves the use of marital property for a person’s sole benefit rather than any purposes related to their marriage. For example, a person may be accused of dissipating assets if they had an affair and took money out of a joint bank account to buy gifts for their lover. Dissipation may also involve the destruction of property as an attempt to harm the other spouse, such as by burning their clothes or defacing a painting that had sentimental value. It may also involve any other actions that reduce the value of the marital estate, such as spending marital funds on gambling or illegal drugs.

Proving that dissipation of assets occurred is not always easy, and certain limitations apply to these actions. Courts in Illinois have determined that a person’s actions will only be considered to be dissipation if they took place after the couple’s marriage began to experience an irretrievable breakdown. Illinois law also states that a spouse may only make a claim of dissipation within three years after they discovered or should have known about the other spouse’s actions, and claims may only address dissipation that occurred within five years before a spouse filed a petition for divorce. For example, if one spouse purchased an expensive motorcycle for themselves three years ago, but the couple did not begin experiencing relationship problems until two years ago, this purchase would not be considered dissipation.

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dupage county family law attorneyIn family law cases involving children, parents will often disagree about the best ways to handle child custody. While some divorcing parents may be able to resolve their differences and reach agreements on these issues, this is not always possible. In cases involving contentious disputes between parents or other situations where outside help may be needed to make custody-related decisions, a guardian ad litem may be appointed. By understanding the duties of a guardian ad litem and how they may influence a child custody case, parents can determine the best ways to protect their rights and address their children’s best interests.

What Does a Guardian Ad Litem Do?

When parents cannot reach agreements about how they will share in the allocation of parental responsibilities and parenting time, they may leave the final decisions on these matters up to the judge who oversees their case. However, a judge may be concerned that they do not have enough information to determine what would be in the children’s best interests. To gain a better insight into the case, the judge may appoint a guardian ad litem (also known as a GAL). Either parent may also ask that a GAL be appointed if they believe that it would be necessary.

A guardian ad litem is an attorney who will be tasked with representing the best interests of the children in a divorce or family law case. While parents will usually divide the costs of the GAL’s services, the GAL will not represent either party. Instead, they will be focused on determining how the outstanding issues in the case can be resolved in a way that will best provide for children’s needs while ensuring that they can maintain close relationships with both parents.

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dupage county spousal support lawyerWhen a couple decides to end their marriage and get a divorce, this can sometimes put one spouse in a difficult position as they determine how they will be able to support themselves on their own. In these situations, a spouse may ask to receive spousal support from their former partner. These payments, which are referred to as spousal maintenance in Illinois law, may be available in situations where one spouse earns a higher income or where a stay-at-home parent or a person who has extraordinary needs requires financial support to be able to meet their ongoing needs. By understanding the types of spousal maintenance that may be available, spouses can make sure this issue will be addressed correctly during the divorce process.

Three Types of Spousal Maintenance

In a case where a divorcing spouse is requesting spousal maintenance, a couple may agree that this type of support will be paid, or both parties may present their case to a judge, who will decide whether spousal support will be appropriate. The judge will look at each party’s financial situation to determine whether one spouse needs support and whether the other spouse will have the means to make ongoing payments. They may also consider other factors, such as whether the person who is asking for support made sacrifices to their career during their marriage or helped their spouse pursue career opportunities and increase their level of income.

If a judge determines that spousal maintenance should be awarded, they may choose one of the following options:

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dupage county divorce lawyerWhen married spouses choose to get a divorce, or when an unmarried couple ends their relationship, this will not only affect the couple themselves, but also their children and other extended family members. In some of these cases, grandparents may be concerned about their ability to maintain close and continuing relationships with their grandchildren. This may be an issue in situations where a person does not get along with their former spouse’s parents, and grandparents may worry that a parent will attempt to limit the amount of time they can spend with their grandchildren or otherwise harm a child’s relationship with extended family members. In some cases, grandparents may be able to secure visitation rights with grandchildren. When addressing these issues, grandparents can work with a family law attorney to determine their rights and options.

Petitioning for Grandparent Visitation Rights

Illinois law presumes that parents who are fit to care for their children are able to make decisions about whether continuing relationships with grandparents will be beneficial for their children. However, if a parent has denied a grandparent access to their grandchildren, a grandparent may petition for visitation rights. In these cases, a grandparent will need to show that a parent’s actions to deny visitation by a grandparent will result in harm to a child’s physical or emotional well-being.

If a child’s parents have begun the divorce process, have finalized their divorce, or have received a legal separation, a grandparent may petition for visitation as long as one of the parents does not object to this visitation. Grandparents may also seek visitation rights in cases where a child’s parents are unmarried and not living together, as well as situations where one of the child’s parents is deceased, has been missing for at least 90 days, is incarcerated in prison, or is deemed legally incompetent.

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dupage county legal separation lawyerThe decision to get a divorce is difficult for most married couples, but husbands and wives who practice Islam may be especially hesitant to take this step. The prophet Muhammad has said, “Of all the lawful things, divorce is the most hated by Allah." Because of this, many couples may consider other options before proceeding with an Islamic divorce, including legal separation. By understanding when a legal separation may be beneficial, a couple can make choices about the right solutions for their unique situation.

Legal Separation Before or Instead of an Islamic Divorce

Muslim couples can take multiple approaches during the divorce process. A husband may choose to end his marriage through the talaq process without the consent of his wife. In other cases, a couple may mutually agree to end their marriage through the process of khula. Regardless of the method chosen, a couple is required to complete a waiting period of at least three months (known as the iddah) before their divorce can be finalized under Islamic law.

In addition to following the proper religious laws when ending their marriage, a couple will also need to meet a variety of requirements to dissolve their legal partnership. They may choose to legally separate during the iddah waiting period, and this separation may be extended for a longer amount of time or even indefinitely. This will allow them to live separate lives, but they will remain legally married. Doing so can have several benefits, such as the ability for one spouse to maintain insurance coverage under the other spouse’s policy. If the couple wishes to finalize their split, they will be able to complete the divorce process at any point in the future.

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dupage county divorce lawyerA divorce will involve multiple types of legal issues, and at the end of the divorce process, the decisions made about these issues will be set down in their divorce decree. The final orders issued by a family court will address how the ex-spouses will handle certain issues going forward, and both spouses are required to follow the terms of these orders. However, there may be some cases where a spouse may feel that these orders no longer apply to their situation, and they may seek a post-divorce modification. It is important to understand when these modifications can be made and how a person can successfully demonstrate that their requested changes are necessary.

Demonstrating a Significant Change in Circumstances

In most cases, the terms of a divorce order can only be changed if one of the spouses or the children they share have experienced a significant change in circumstances. Some examples of these changes include:

  • Loss of income - If an ex-spouse loses their job, experiences a demotion, or will be earning a lower income for other reasons, they may be unable to continue paying financial support to their ex-spouse while also meeting their own needs. In these cases, they may request for child support or spousal maintenance payments to be reduced temporarily until they can find a new job, or they may request a permanent modification if they will be unable to return to their previous income level.

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