Question: My divorce was final a few years ago and my ex and I decided that she should have primary custody since I was on the road so much. My job has now changed and I am home most of the month. I would like to have fifty/fifty custody. Can we change the original agreement?
Answer: it’s important to recognize that no divorce order is ever final—many things can come up in the intervening years that make adjustments necessary. Your situation is just one example of what can change.
Many people don’t know that their divorce decrees are only enforced if, or when, they choose to enforce them. You are free to change it at any time with or without permission of the court. So to begin, what kind of relationship do you have with your ex? If you and your ex can agree on a new schedule, you can simply incorporate it.
This option has one caveat, however. If your ex later changes her mind about the agreement, the original schedule in your divorce decree immediately takes precedence.
One way to ensure that does not happen is to draft a formal order for the court to approve. Again, if your ex agrees, this can be done fairly easily and inexpensively. You need only contact an attorney who can draft the paperwork, both of you sign the agreement and the court signs off on it.
If however, your ex does not agree to the change, you still have options. You may contact an attorney who will file a motion with the court to modify the schedule. Your ex will be notified and a hearing will be held where you can present new evidence about your circumstances. The judge will then make a determination and issue a new order according to his findings.