As part of the divorce process, courts will evaluate whether child or spousal support is appropriate, and what child custody arrangements are in the child’s best interests. Some form of joint custody arrangement is increasingly common. Circumstances can change, from remarriage to new job opportunities to moving to care for a sick relative. With these changes, it may be necessary to change the requirements of the divorce decree.
Custody
Missouri law states that a court will not modify a prior custody judgment unless, on the basis of facts that have arisen since the prior decree or that were unknown to the court at the time, “a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.”
There is a distinction between changing who holds custody and changing the parenting time schedule. Changing physical custody, for example moving from joint physical custody to sole physical custody, requires a substantial change in circumstances. Simply rearranging a joint physical custody schedule does not. In Russell v. Russell, 210 S.W.3d 191 (Mo. banc 2007), the Missouri Supreme Court held that the word “substantial” does not appear in section 452.410.1 and should not be read into the statute for changes in scheduling parenting time between mother and father.
Modifying visitation is governed by section 452.400.2, which allows a court to modify an order granting or denying visitation whenever modification would serve the best interests of the child. The court will not restrict a parent’s visitation rights unless it finds that the visitation would endanger the child’s physical health or impair his or her emotional development.
This is an important distinction. Adjusting which days a parent sees the child carries a lighter burden than changing which parent holds actual physical custody.
Child and spousal support
To modify the amount of child support paid by one parent, that parent must show changed circumstances so substantial and continuing as to make the existing terms unreasonable. Our guide on how to win a child support modification case walks through what that showing requires and the evidence a Missouri court expects.
In the case of child support, a prima facie showing (that is, a presumption that must be rebutted) of a substantial and continuing change is made when applying the Form 14 child support guidelines to the parties’ current financial circumstances would change the support amount by 20 percent or more, and the existing amount was based on the presumed guidelines amount. Note that the 20 percent refers to the change in the calculated support figure, not to a 20 percent change in either parent’s income. A change in income is often what drives it, but the number the court measures is the support calculation itself. A smaller change can still support a modification, it simply does not carry the presumption.
With spousal support, the base test is the same, namely that circumstances have changed so much that the existing arrangement has become unreasonable. Under section 452.370.1 the court considers all financial resources of both parties, including the extent to which the reasonable expenses of either party are, or should be, shared by a spouse or other person with whom he or she cohabits, and the earning capacity of a party who is not employed.
The court also looks at the “reasonable needs” of the spouse receiving support, and it must remove the expenses attributable to the children. In Ruffino v. Ruffino, 400 S.W.3d 851 (Mo. App. E.D. 2013), the wife listed $7,963.05 in monthly expenses, the trial court eliminated everything attributable to the parties’ children, and the remaining $3,900.00 per month became the maintenance award. The Court of Appeals affirmed, holding that a trial court must exclude from any maintenance award the amounts spent on the direct care and support of a dependent child. That distinction matters, because the figure left after the children’s expenses come out is the figure that drives the support amount, and a later change in that figure may be grounds to revisit it.
One more rule worth knowing. Unless the parties agreed otherwise in writing or the judgment expressly provides otherwise, the obligation to pay future statutory maintenance ends on the death of either party or on the remarriage of the party receiving maintenance.
A change of circumstances can take many forms, and must be acted upon in the proper way. In the event of a change in circumstances, or where the other parent or former spouse has asked the court to change support or custody, you should contact a lawyer immediately to ensure that your rights are protected.