Post-Decree Modification of Orders 

After a lengthy divorce or custody hearing, it may seem that court orders are set in stone. However, due to unforeseen circumstances, modification of orders often becomes necessary. When it comes to real life, things change. When these changes are substantial and continuing, Colorado law provides a mechanism to modify existing orders through a process known as "post-decree modification." 

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It's crucial to understand that court orders are not automatically modified, even if your circumstances have changed dramatically. You must formally petition the court for a modification, and the court will only grant the change if certain legal standards are met.

The General Standard for Modification: "Substantial and Continuing Change of Circumstances"

For most post-decree modifications in Colorado, the party requesting the change (the moving party) must demonstrate that there has been a "substantial and continuing change of circumstances" since the entry of the last order. This means:

• Substantial: The change must be significant enough to warrant a re-evaluation of the existing order. Minor or temporary fluctuations generally won't suffice.

• Continuing: The change must not be fleeting or short-term. It must be something that is expected to persist into the future.

The specific application of this standard varies depending on the type of order being modified.

Types of Orders Subject to Post-Decree Modification

1. Modification of Child Support

Child support orders are perhaps the most frequently modified post-decree orders, as parents' incomes and children's needs can evolve over time.

• Standard for Modification: A child support order can be modified if there has been a "substantial and continuing change in circumstances" that results in at least a 10% change in the calculated child support amount.

• Common Reasons for Modification:

  • Significant increase or decrease in either parent's income.

  • Change in the number of overnights each parent has with the children (impacting the child support worksheet).

  • Changes in work-related childcare costs.

  • Changes in health insurance premiums for the children.

  • A child developing significant medical or educational needs.

  • Emancipation of an older child, leading to a recalculation for remaining minor children.

• Effective Date: A modification to child support is typically effective from the date the Motion to Modify Child Support is filed with the court, not from the date the change in circumstances occurred. Therefore, it's essential to file for modification as soon as possible after the change.

2. Modification of Spousal Support (Alimony)

Spousal Support orders can also be modified, unless the original agreement explicitly stated that maintenance is non-modifiable.

• Standard for Modification: A maintenance order can be modified upon a "showing of changed circumstances so substantial and continuing as to make the terms unfair."

• Common Reasons for Modification:

  • Significant change in income or financial resources of either the payor or recipient (e.g., job loss, promotion, serious illness affecting earning capacity).

  • Retirement of the payor spouse (often presumed to be a good faith change if at usual retirement age).

  • Remarriage of the recipient spouse (this typically terminates maintenance automatically).

  • A change in the recipient's ability to become self-supporting.

• Important Considerations: The court will scrutinize the "fairness" of the original order in light of the new circumstances. If the original maintenance was based on a non-modifiable agreement between the parties, it generally cannot be changed by the court, absent very limited exceptions.

3. Modification of Parental Responsibilities (Child Custody) and Parenting Time

Modifying orders related to children, specifically parenting time and decision-making responsibility, often involves a higher standard, prioritizing the child's stability.

• Standard for Parenting Time Modification: For a change to the parenting time schedule (where the children live and when), the standard is the "best interests of the child."

  • Two-Year Rule: Generally, a parent cannot request a modification of parenting time within two years of a prior modification request, unless the child's physical or emotional development is in danger, or the child's primary residence is changing.

• Standard for Decision-Making Responsibility Modification: Modifying decision-making responsibility (who makes major decisions about a child's health, education, etc.) is held to an even higher standard:

  • The court will only modify decision-making if it finds, based on facts that have arisen since the prior decree (or were unknown at that time), that the retention of the current allocation would endanger the child's physical health or significantly impair the child's emotional development, and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

  • Exceptions: If both parties agree to the modification, or if the child has been integrated into the family of the moving party with the other parent's consent.

• Common Reasons for Modification:

  • A parent's relocation a significant distance away (requires specific legal procedures).

  • A significant change in a parent's work schedule or availability.

  • Changes in a child's needs as they grow (e.g., school, extracurriculars).

  • Evidence of domestic violence, child abuse, or neglect.

  • A parent's failure to consistently adhere to the existing parenting plan.

  • A child's expressed, reasoned wishes (if mature enough).

The Modification Process

1. File a Motion: The party seeking modification files a formal "Motion to Modify" with the court that issued the original order. This motion must outline the specific changes requested and the "substantial and continuing change of circumstances" justifying the request. An accompanying financial affidavit (for support modifications) and often an affidavit outlining the reasons for modification are required.

2. Service: The motion and supporting documents must be formally served on the other party.

3. Response: The other party has a limited time (typically 21 days) to file a response.

4. Financial Disclosures: For support modifications, updated Sworn Financial Statements from both parties are mandatory.

5. Mediation: For child-related matters, mediation is almost always required or strongly encouraged to help parents reach an agreement without a court hearing.

6. Hearing: If the parties cannot reach an agreement, the court will schedule a hearing where both sides present evidence and arguments. The judge will then make a determination based on the applicable legal standards.

Post-decree modification cases can be as complex as original divorce proceedings. The legal standards are precise, and the burden of proof rests on the party seeking the change. An experienced Colorado family law attorney can:

• Evaluate whether your circumstances meet the legal standard for modification.

• Assist in the preparation of necessary motions and supporting documents.

• Guide you through the mediation process.

• Assist in gathering compelling evidence for the court.

Don't assume that a change in your life will automatically lead to a modification of your court orders. Taking proactive steps and seeking professional legal advice is crucial to protect your rights and ensure that your post-decree orders reflect your current reality. Unbundled legal services provide an affordable and flexible option that provides the level of support and involvement your case needs while being more affordable than traditional representation. Learn more about unbundled services here.  

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Disclaimer: This webpage provides general informational purposes only and does not constitute legal advice. Every post-decree modification case is unique. It is crucial to consult with a qualified Colorado family law attorney to discuss your specific situation and understand your legal options.