When we meet to discuss modification, the first issue I need to determine with you is whether or not the order/judgment can be modified. When a divorce agreement is prepared and submitted to the probate court for approval, once the judge approves the agreement, the question becomes, does the agreement merge or does it survive.
When I speak to you about an agreement that merges, I mean that the agreement does not maintain independent significance but actually becomes in total the judgment for divorce or whatever judgment. When an agreement merges, when there is a material change of circumstances, a complaint or motion for modification can be presented to the court seeking relief from the existing court order/judgment. A good example is if you involuntarily lost your job and you cannot get reemployed. As a result, you cannot pay child support, so you come to me to discuss seeking relief from the existing order.
When I speak to you about an agreement that survives, I mean that notwithstanding the incorporation of the agreement into the judgment, the agreement survives the judgment as an independent contract, having independent legal significance. When an agreement survives, a modification is extraordinarily difficult to obtain. In fact the standard to seek to obtain the modification is not based upon material change of circumstances, but rather what is referred to as the countervailing equities theory. There is only one situation that the courts have allowed modification under the countervailing equities theory, and that situation is very rare and unlikely to succeed.
I see people who seek modification of orders/judgments involving support when the obligor is retiring, when a child/children are entering college and there are expenses for school that need to be paid. This type of modification is pretty standard and certainly worth bringing. I will be happy to meet with you to discuss the issues involved in your modification or defending against the modification launched against you.
PhilipJByers
Philip J. Byers, Attorney 