The Law Offices of John Ferrara

What Are The Reasons People Seek A Post-Divorce Modification?


There are a couple of reasons that people seek post-divorce modification. Somebody might try to seek to modify the property settlement after the divorce has been finalized, but I can tell you that that will be extremely difficult, assuming that the parties agreed to the distribution. An agreement between spouses will be enforced according to its terms unless there is proof of unconscionability or fraud, duress, overreaching or other inequitable conduct. That’s a very high showing, so most of the time the party trying to modify a property settlement agreement that they agreed to will lose. One argument employed by a person seeking to set aside the property settlement agreement is that the other spouse fraudulently concealed the existence of marital assets prior to the settlement of the divorce action. If one can show the other spouse fraudulently concealed marital assets, one may be able to set the agreement aside and modify the agreement through the judicial process. But that’s just going to be a difficult showing.

It is much easier to modify the custody arrangement, and the law actually requires that these modifications occur if something has happened in the family since the divorce was finalized that has led the former spouse to think that the present order no longer serves the child’s best interest. A parent seeking to modify an existing custody order first must demonstrate that a change in circumstances has occurred since the entry thereof that is sufficient to warrant the court undertaking a best interest analysis. Assuming that one shows the required change in circumstances, one must then show what custodial arrangement would promote the child’s best interest. If one can show the change in circumstances and the child’s best interest requires a modified order, the court will change the custody arrangement.

The support provisions of a divorce can also be modified. The moving party must show will vary depending upon whether the court set the amount of the child support and maintenance or the parties agreed to the amount of the child support and maintenance. When the parties agreed to the amount of the child support and maintenance, it is more difficult to change (although more recently, it has become easier to change the support due to certain statutory changes). Orders also change when children emancipate or frequently when they start college and their agreements did not address the college expense burdens.

Are There Different Types Of Custody In New York?

In New York, we talk about two concepts in regards to custody. Some lawyers call it physical or residential custody, which describes where the child will live. To some degree, the child will live with both parents, so the question becomes where the child spends the bulk of his or her time. If the child spends the bulk of the time with a particular parent, then that parent is often termed the custodial parent or the residential parent. That is just a convenient way of noting that more of the parenting time is with one parent than the other.

We also talk about legal custody in this state. Legal custody pertains to two concepts. One is whether one parent will have access to the important records that are generated about a child (psychiatric, educational, medical, religious, etc.). The right to access records about one’s child is almost always granted to both parents unless somebody is doing something highly inappropriate.

When we talk about joint legal custody, we also talk about who has the authority to make important decisions for the child. In a situation where one parent has sole legal custody, that parent makes those decisions. In a case where there is joint legal custody, the parents are to communicate with each other with the aim of trying to reach a consensus. These important decisions might include what religion to raise the child, what pediatrician to use, whether or not non-emergency medical procedures will be done to the child, whether or not an elective surgery of some form will take place, what sports the child might play, or whether the child will attend public school, private school or be home-schooled.

Using the example of football, one reasonable parent might want the child to play, and the other reasonable parent might not want the child to play. Who will make that decision? In a joint custody situation, the parents are making that decision together. In a sole custody situation, one parent is making the decision to the exclusion of the other. In either case, if the parties don’t agree, one of the parties can bring the case to court. There are times when the court will make a decision about such things because the parties simply can’t reach the agreement on their own. As the child gets older, the child often makes these decisions. Very few parents decide whether a sixteen year old child will join the school band; the child makes that decision, as a practical matter. As a legal matter, maybe it’s not quite true, but I think it would be hard-pressed for a parent to say no or yes when the child wants to do it at that age.

For more information on Post-Divorce Modification In New York, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (845) 794-1303 today.

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