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How to Modify a Marital Settlement Agreement

A lawyer in front of a couple with a couple ring and a gavel.

To modify a marital settlement agreement, you either agree on the changes with your ex-spouse and submit the paperwork to the court, or you file a motion for the changes with the court. Typically, a significant life change such as job loss or parental relocation must be involved. This article explains the issues related to how to modify a marital settlement agreement.

A lawyer in front of a couple with a couple ring and a gavel.

Can a Divorce Settlement Be Changed in Illinois?

Many times, yes, a divorce settlement can be changed in Illinois. One way is through agreeing with your spouse to modify the terms of your marital settlement agreement and coming to a consensus on how to do it. This process is similar to getting an uncontested divorce in the sense that both of you work collaboratively and in the spirit of cooperation.

The other method is through a court order. This approach typically requires a significant change in circumstances. Otherwise, a judge is unlikely to approve it.

You do have emergency remedies if you are scared for your child’s safety, and those safety issues are why you are seeking a modification. Your divorce lawyer can explain more about your legal options and what to do.

Avoid changing your marital settlement agreement terms without court involvement, even if you had a friendly and collaborative divorce. Any changes you make on your own without a judge’s OK are not enforceable.

For example, your ex-spouse could choose to stop following the new terms at some point. If you try to hold your former spouse accountable for this violation, he or she could report you for stepping out of the bounds of the original settlement. A judge is more inclined to follow the terms of the existing legal order, rather than an agreement that perhaps only you claim exists.

Modification of a Marital Settlement by Agreement

With a collaborative modification, you submit the new version of your agreement to the Illinois court responsible for it. Absent glaring errors such as it not being in the children’s best interest, a judge should approve it. This new agreement is what your divorce follows instead of the old one.

However, both ex-spouses agreeing to modify a divorce settlement and agreeing on the whys, hows, whens, wheres, and so on can be tricky. Changes in divorce terms often lead to one spouse getting less maintenance or less time with the children. A former husband or wife may not have many reasons, if any, to voluntarily submit to negotiations.

Fortunately, plenty of situations exist in which both ex-spouses are ready for changes. A divorce lawyer can help with finding effective dialogue and common ground.

It is also worth noting that certain legal limits govern the changes you can make. Child custody decisions still must be in the best interests of the children. Child support changes also must follow Illinois child support guidelines or be for justifiable reasons.

Modifying a Marital Settlement Agreement by Court Order

To obtain a post-judgment modification, you or your divorce lawyer file a motion in court. You must show a substantial change in life circumstances.

Examples include job loss by one ex-spouse, remarriage by one ex-spouse (or even just living with someone new), one ex-spouse wanting to relocate to another state or country, or one of the ex-spouses battling addiction or no longer battling it.

Children reaching the age of majority or suddenly incurring significantly higher expenses can also cause you to try to figure out how to modify a marital settlement agreement. If your children are older and have different wishes, they may want the wishes to be officially recognized, too.

If your former spouse has a new romantic partner who is dangerous and the children are exposed to that person, an emergency modification may be in order. You must submit evidence to demonstrate changed circumstances to a judge for your agreement to be modified. Your lawyer can help you obtain the right types of documentation.

Temporary Modification

After you file a petition of modification, your ex-spouse must be sent a proper notice and can file an answer with the court. If your modification involves children under the age of 18, a judge might make temporary orders related to the modification. These temporary orders remain until a judge makes final determinations.

When Can You Modify a Marital Settlement Agreement?

Marital settlement agreements outline what happens to your children, property, assets, debts, and more after a divorce. They are one of the benefits of an uncontested divorce because you and your former spouse have more power over what happens. In a contested divorce, a judge decides and may do so in ways that make everyone unhappy.

Absent cases of fraud or egregious misconduct, divorce agreements are final when the Judgment is entered in court (the divorce is final).  If there is an error in the paperwork, you may have 30 days after the final divorce agreement filing to file to modify property division changes. If you are filing later than that, only certain areas are eligible for marital settlement amendments. Spousal maintenance, parenting time, and child support are among them.

Consult your divorce lawyer as soon as possible if you learn about misconduct or fraud, such as your former spouse keeping assets hidden that he or she should have disclosed.  You should not sign the marital settlement agreement unless you have conducted thorough written and oral discovery, especially if you believe that your spouse may be hiding assets. 

Otherwise, you can get a court order to modify agreements if you or your ex have experienced drastic life changes. Losing your job, for example, might mean you cannot afford the original child support amount.

Similarly, if it happens that your ex got a new job requiring extensive travel, he or she might be leaving the children with you most of the time. That could contradict the parenting plan. You might want to make the change official by seeking judge approval for custody or parenting time modifications.

Tips for Modifying a Divorce Agreement

When you seek a post-judgment modification, you can do several things to make the process easier. One is to be able to articulate clearly the reasons for the change. That way, when you explain the situation to your divorce lawyer, he or she can better advise you.

It is important to, enlist the help of a divorce lawyer if you are making changes to a divorce agreement. The odds of a successful outcome are significantly higher when you have legal representation. Even in amicable divorces, talking with a lawyer first before your ex-spouse is a way to ensure your request is for a good reason. A lawyer can prepare you for potential negative reactions your ex might have, or the lawyer could take care of the discussions himself or herself.

Make the Changes as Quickly as Possible

It is wise to start inquiring about how to modify a marital settlement agreement as soon as issues arise. For example, if you pay $X amount of child support a month but your employer cuts you down to part-time, that is when you talk with your lawyer about a possible post-judgment modification.

The earlier ex-spouses know about significant changes in your circumstances, the more time they have to process and think about things. Someone is less likely to agree to modifications in a short time if the information is brand-new to him or her.

Try Mediation Before Battling Over the Proposed Changes in Court

It can save you tremendous stress and expense. Mediation may also help your ex see matters from a different perspective.

Gather Evidence to Back Up Your Claims

For example, if you have been laid off from work, show your lawyer and the court the evidence of this. Courts look more unfavorably upon child support reductions when a parent voluntarily quits a job for no good reason. If you can demonstrate you were laid off and are actively searching for new work, that would be helpful.

If you are making less money, the evidence of this could include check stubs or medical documentation of serious medical problems limiting your ability to work.

If the modification issue is related to child neglect or abuse from the other parent or the other parent failing to follow the terms of a parenting plan, keep a log of everything you can. Examples include when the other parent failed to show up for visitation or dropped the child off late or at the wrong place.

Talk With a Divorce Attorney

If you are thinking about doing your modification solo, be aware that various challenges and complications may arise that could be difficult to navigate without legal representation. If attorney fees are of concern, consider the bigger picture. You will probably save money with an attorney in the long run. That is because the courts may limit what you are able to do in the future if judges deny your modifications this time around. You might not get a second or third chance, or if you do, the battle will be uphill.

Get the Agreement in Writing for the Court to Approve

Get new agreements in writing and a judge’s approval. Otherwise, a judge might not enforce them. Even if you’re the one requesting changes because you’ve been injured or are looking out for your children’s best interests, you could end up as the spouse in more legal peril.

Uncontested divorce lawyer Denise Erlich is passionate about helping divorcing couples in the greater Chicagoland area transition to their new life as seamlessly as possible. Ms. Erlich patiently guides her clients through every step of the divorce process and provides clients with candid advice about their case and legal options, so they can make informed decisions about their future.

Years of Experience: More than 20 years
Illinois Registration Status: Active
Bar & Court Admissions: Illinois State Bar Association U.S. District Court, Northern District of Illinois