Post Judgment Motions for Modification, March 2019

It is no secret that families have changed over the years. In addition, the cost of daycare, housing, and post-secondary education have skyrocketed. The laws pertaining to alimony, child support and custody have also changed to reflect technological, demographic and other differences in society. There is less job security as we scramble to earn a decent living.

Parents want more for their children from a society that has less to give them. As a result of their frustration, ex-spouses are turning to each other for more money and time. It was inevitable that post judgment litigation would increase. What seemed so easy to contemplate in mediation or settlement talks becomes problematic when former spouses try to fit a parental access schedule into a day crammed with work, child care, a new significant other and possibly that person's children.

Parents who relocate or change job location request their ex-spouses to meet them half way in order to facilitate visitation. Parents who were never married request their counterparts to exchange children at a nearby house of worship or the police station in order to avoid the grandparents on the other side of the "family."Family holidays are no longer what they were.

Not so surprisingly, among the most commonly filed post judgment motions is the Motion to Modify. The modification sought might be to modify alimony, child support, the cost for extra - curricular activities, post majority education or custody and parental access. The statutory requirement for a Motion to Modify a financial order is that there must be a substantial change in financial circumstances. If the modification sought has to do with custody or parental access, the modification must be in the child's best interest.

There is a filing fee to initiate a motion for modification which is currently $180.00. The motion should be served by marshal if it is the first Motion for Modification post judgment. If the Motion to Modify closely follows a motion which has already been served by a marshal post judgment, it may not be necessary to re-serve by marshal. Bear in mind that it is safer to serve a motion to modify by show cause or subpoena in order to assure the notice provision of due process and the appearance of the adverse party.

The problematic portion of a motion to modify is the standard of a "substantial change in circumstances." What one judge may deem "substantial," another judge may consider minor. That it is why it is wise to have counsel represent you or at least have a consultation with an attorney regarding the matter.

The term "the child's best interest" can also be problematic. Although the term is not as loosely defined as "substantial", there are different interpretation of what constitutes a "child's best interest." However, Connecticut General Statutes section 46b-56(c) sets forth 16 factors to be considered in ascertaining the child's best interest. The sentence preceding the list of factors is illustrative of the gray area of best interest consideration. The statute reads "... the court shall consider the best interests of the child, and in doing so may consider but shall not be limited to, one or more of the following factors ..." In other words, the court may inject its own views of the child's best interest.
Future newsletters will discuss other post judgment motions.