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Is it Time to Modify?

Blog > 2018 > February

Is it Time to Modify?

Posted By Oxendine & Sauls, LLC


In Family Law, Divorce Decrees, Separate Maintenance Orders, Legitimation Orders, Paternity Orders, and Temporary Orders may be modified through the filing of a modification action.  However, the only issues in those Orders that can be modified are Custody, Parenting Time/Visitation, Child Support, and Alimony.  The Courts in Georgia can never modify a property division, division of assets or division of debts issued in a Final Divorce Decree.


In Domestic Litigation Cases, a party is entitled to a modification if one of two things occur.  The first thing is that the individual seeking a modification must establish that there has, in fact, been a “Material Change in Circumstances” that warrant a modification. That is the legal burden that explains that there must be a material change, not an insignificant change, and the change must be affecting one of the material terms of the current Order.  You must properly prove this legal burden in order for your case to proceed; that is why it is important to work with experienced counsel when petitioning to modify a Court Order.  A few examples of a “Material Change” would be abuse of a child, drug addiction of a parent, unstable living conditions, a dramatic involuntary decrease in income of a party, or a dramatic increase in income for a party.  Of course, throughout the pendency of the modification action, you will need to prove that one or more of these things material changes have occurred.

The second thing a party seeking to file a modification must consider is timing.  If it has been two (2) years from the date of the Final Judgement and Decree of Divorce, the Final Order of Legitimation, the Final Order of Paternity, The Separate Maintenance final Order, or if it has been two (2) years from a previous modification action, a party may be entitled to a modification without having to prove a material change.  At your consultation, we can review your case, discuss the current circumstances, and decide the most advantageous way to proceed with your modification action.

The two requirements mentioned above are not both required, so an individual seeking a modification can file the modification if one of the two circumstances above are in existence at the time of filing.  It is our opinion that the courts put these two prongs in place to help individuals in need of a modification and to protect the best interest of the children involved in unimaginable circumstances.


A Modification Action seeking to Modify Custody, Parenting Time/Visitation, Child Support, or Alimony needs to be filed in the County where the Defendant resides.  In many cases it will be in the same county that issued the final order, but in a few cases the opposing parties will have moved to a new county and that new county will be the proper jurisdiction for the modification.  In a select number of cases the opposing party will have moved out of state; if this is the case the State in which the child resides or the state in which the opposing party resides will be the state of filing.


If you believe that you are entitled to a Modification you should call our office a schedule a consultation.  If you have an old out dated Final Divorce Decree, or if you find yourself paying child support for three (3) children when there is only have one child left at home, you need a modification.  Don’t sit around in living conditions that don’t promote a good environment for you and your children. There are plenty of circumstances that support the need to modify your current Order.  Maybe your children have been living primarily with you for years, but your Divorce or Legitimation Order indicates you only have visitation and have to pay child support.  Maybe your situation has improved since you for divorced and you’re in a better position to be a more involved parent.  Maybe the other parent’s circumstances have changed and that old Order is just doesn’t work anymore.  If that’s the case, come on in to Oxendine & Sauls, have a cup of coffee, and lets discuss your modification needs.

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