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Modification of alimony, child support, custody, or visitation

  • Georgia law allows for parties to come back and modify their existing orders with respect to alimony, child support, custody, or visitation / parenting time. The public policy of Georgia to revisit issues from prior agreements or orders is to allow for flexibility as the circumstances can change. For example, a payor might be fired from his or her job as part of a company’s layoffs and through no fault of his or her own the financial circumstances of that party have arguably substantially changed. In would not be appropriate to require a payor to continue to pay amounts he was ordered to pay (or agreed to pay) when financial circumstances were better.
  • Importantly, however, as a general rule, property division is not modifiable.
  • Modifications of custody and modifications of visitation have different thresholds, requirements, and time restrictions. O.C.G.A. §19-9-3 makes it clear that: In any case in which a judgment awarding the custody of a child has been entered, on the motion of any party or on the motion of the judge, that portion of the judgment effecting visitation rights between the parties and their child or parenting time may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the child, provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment. However, this subsection shall not limit or restrict the power of the judge to enter a judgment relating to the custody of a child in any new proceeding based upon a showing of a change in any material conditions or circumstances of a party or the child.
  • To simplify this, the statute essentially says that a modification of visitation can not happen more than once every two years but importantly there does not need to be a material change in condition proved.
  • Generally, custody on the other hand does not have a time limit or waiting period, but the threshold is much higher as there must both be a (1) a material change of condition (2) substantially affecting the interest and welfare of the child. A small change will not suffice but importantly, the material change in condition does not have to be negative in nature and can instead be a positive material change. Of course, merely proving a material change and the fact it affects the children does not necessarily mean custody will be changed.
  • Each matter is very case and fact specific, so it would be prudent to consult with an experienced family law attorney such as the attorneys at Naggiar & Sarif to understand what Court’s generally consider a material change of circumstances or condition and to discuss your options.
  • Child Support can be modified for many reasons, but generally, the most common reasons for a modification of child support are due to a substantial change in either parent's income and financial status or the needs of the child.
  • With respect to timing and waiting periods, O.C.G.A. §19-6-15 makes it clear that no petition to modify child support may be filed by either parent within a period of two years from the date of the final order on a previous petition to modify by the same parent. However, there are exceptions to this two year period such as where:
  • (A) A noncustodial parent has failed to exercise the court ordered visitation;
  • (B) A noncustodial parent has exercised a greater amount of visitation than was provided in the court order; or
  • (C) The motion to modify is based upon an involuntary loss of income.
  • This can all seem overwhelming and complicated, as there are many details and intricacies regarding the child support statute. The divorce and family law attorneys at Naggiar & Sarif can help you navigate these issues.