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“Can I change the terms of my divorce order or separation agreement?”
Varying (Changing) Your Divorce Order or Separation Agreement
Yes, under certain circumstances:
- -you can change the child support provisions if there has been a change in circumstances
- -you can change the child custody, access, life insurance, spousal support and most other provisions if there has been a material change in circumstances
“What is a material change in circumstances?”
Once there is a divorce order or separation agreement, the law does not want you to keep trying to change things, unless there is a very good reason. So, not just any change is ground to vary - it must be a fairly substantial change. As well, the change must have occurred after the divorce order or separation agreement. Your best bet is to consult with a family law lawyer to check this has occurred in your case.
“How far back can the change be made?”
Generally, the rule is that the court will only make a change as of the date legal proceedings were started. This is a rule of thumb, and not a rule of law. If you can convince a judge that there was a good reason for the delay in commencing legal proceedings, then a judge may make the change effective on an earlier date. Examples of this are where a new fact came to light that you tried to discover, but was hidden by your ex, or where you were unable to afford a lawyer.
“My spouse has custody of the children. Can I get child custody?”
This can be very hard to do. Generally, the court favours stability, and will not want to change a child custody arrangement. Some exceptions to this are cases where one parent wants to move away with the children, or a teenage child decides to switch residences.
“What are some examples of a material change in circumstances for which child custody would be changed?”
Things such as serious neglect by the custodial parent, a significant drop in the child’s grades, or the child developing significant psychological problems.
“I have joint custody, but the other parent is never involved in the children’s lives. Can I get sole custody?”
Maybe, but ask yourself whether it is really worth the trouble. You’ll spend thousands of dollars (if not tens of thousands of dollars) in legal fees and put yourself and your children through a very stressful experience. If the other parent is not involved in the children’s lives, will the sole custody order really make a practical difference?