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Motion to Modify

What happens after the divorce is final? Well, nothing... until a party files a Motion to Modify Final Decree. What's happening here is that either party to the divorce is asking the Court to change the terms of their divorce decree. Here are the more common things that could be changed.

Child Support. To change child support you're mostly going to need to show a significant change of income. This isn't all that hard to do, though keep in mind that if you're wanting to lower your child support payment you're going to have to show that your decline in income isn't your fault. If, for instance, you quit your job or voluntarily took a new job with lower pay or did something stupid to get yourself fired, then you're much more likely to be stuck with your child support payment. If you got laid off because of economic conditions and are diligently looking for a new job, then your situation may be somewhat better.

Child Custody. To change child custody you're going to need to meet the Gibbons test, that is,
"(a) that, since the making of the order sought to be modified, there has been a permanent, substantial and material change of conditions which directly affect the best interests of the minor child, and
(b) that, as a result of such change in conditions, the minor child would be substantially better off, with respect to its temporal and its mental and moral welfare, if the requested change in custody be ordered." Gibbons v. Gibbons, 1968 OK 77.

It proves very difficult in practice to meet the Gibbons standard.

Child Visitation. Visitation can be changed by the court when it's in the child's best and this generally comes up most often when the visitation of either parent is being denied for some reason. Typically the reasons get hashed out in court and the court enters a new order for visitation or enforces the old order for visitation. The court can also modify visitation in response to a Motion to Enforce Visitation as the statute which allows for this motion gives the court sweeping power to alter the decree including modifying the custody of the child from one parent to another. This happens very rarely however.

Alimony. Support Alimony can be modified when the court is shown a change of circumstances as to either party. If a husband is supporting a wife and the wife gets married, that is typically a reason for support alimony to change. However, we have to be careful here with our terms because alimony in Oklahoma actually refers to two different things, one of which cannot be modified.

As noted before support alimony can be changed. Support alimony is a payment awarded by the court for actual support. If the ability to provide the support is changed or the need for the support is changed then the court may sustain a motion to modify support alimony.

The other kind of alimony is property division alimony. Property division alimony cannot be modified by the trial court as a response to a motion to modify. It is part of the equitable division of property in the initial divorce. Property division alimony is awarded typically when the value of the parties' marital estate is embodied in things that are hard to physically divide, for example a professional practice. The Court cannot divide, for instance, a law practice so the court will value the practice instead at the time of the divorce and award the non-lawyer spouse a sum of money that reflects their share of the marital interest in the practice. The lawyer spouse would have to make those payments out of their income until the alimony award is satisfied.

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