What Is The Legal Standard Or Basis Needed To Modify A Decree?
If the parties seek to modify a custody order, “[t]he party petitioning to modify a custody order bears the burden of demonstrating first, that there has been a change in circumstances since the prior order and, then, if such a change occurred, that the best interests of the child would be served by a modification of that order.” (David ZZ v. Suzanne A., 152 A.D.3d 880 [3rd Dept. 2017] quoting (Matter of Smith v. McMiller, 149 AD3d 1186, 1187 [3rd Dept. 2017]).
If the parties seek to modify a support order.
If the parties seek to modify an asset or liability order, one would need to show “fraud, misrepresentation, or other misconduct of an adverse party” (CPLR 5015[a] ) or to do so would further “the interests of substantial justice.” (Carlson v. Dorsey, 161 A.D.3d 1317 [3rd Dept. 2018]).
Must I Have The Same Attorney Who Handled My Divorce Also Assist Me With The Modification Or Can I Hire Your Firm?
A client can end the attorney-client relationship at any time. (Matter of Cooperman, 83 N.Y.2d 465 ). The client can hire new counsel to address the modification case.
Where Must The Modification Of A Decree Be Filed?
Assuming one is modifying custody or support, the modification can be filed in any county where either party resides. The court may refer the matter back to the original county.
Generally, a party can modify custody or support either in the Supreme Court which granted the divorce or in the Family Court. The case must be filed in Supreme Court if the Supreme Court kept exclusive jurisdiction.
What Is The Process To Modify A Decree?
If one is seeking to modify an order of support or custody in the Family Court, one files a petition to modify.
If one is seeking to modify support or custody in Supreme Court, one will either file a motion or start a new lawsuit, depending upon whether one is seeking to modify an agreement or an order.
If one is seeking to modify an agreement pertaining to assets and liabilities, one must commence an action in the Supreme Court.
If one is seeking to modify a trial court order, one can seek to modify that through an appeal.
Can A Request Or Petition To Modify A Decree Be Challenged Or Opposed?
Yes. These applications are often contested.
What Is The General Timeline For A Modification To Go Through?
Depending upon the complexity, the application may take between a few weeks and a year to resolve.
Why Is It A Good Idea To Retain An Attorney For A Request To Modify A Divorce Decree?
Especially on issues of support, the rules change depending upon whether there was an agreement on the support (an independent contract) or an order, and when the order was entered, and how long it has been in effect, and whether the parties opted in or out of certain provisions of law. To put it mildly, it is a complex area of law.
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