How Much Change is Enough? Top Five Things to Know About Varying a Support Orders
By definition, negotiated agreements and court orders are designed to bring certainty to the settlement of legal disputes between separating and divorcing couples. Still, several of my previous posts have involved the question of whether, in light of a pre-existing domestic contract or a court order (for child or spousal support, for example), there has been “material change” in the parties’ circumstances, to the point where the situation is no longer fair.
The “material change” threshold is important: in law, it may justify a court’s interference with the terms of the existing agreement or order, to the point where it can be varied to better suit the new circumstances, or to address a situation that had never been contemplated by the parties or the court in the first place.
In my law practise, the issue comes up most frequently in connection with a desire to change a spousal or child support order, often because the paying former spouse / parent has lost a job, has remarried and taken on new responsibilities, or is under other financial pressures.
Here then are the top five things to know about that threshold in the context of a variation of a support order:
1. Change is relative.
Whether or not a particular change in circumstances is adequate to meet the legal threshold must always be evaluated in light of the particular facts of each case.
2. The change must be of a continuing nature.
In order to justify a variation of support, the change must be something that has an element of continuity to it.
3. “Material” is both quantitative, and qualitative.
Trivial, insignificant, and short-lived changes will not justify a change in the support payable.
4. It must have been unforeseen.
In order to qualify as a “material change” it must be a new circumstances or factor that was not foreseen at the time the original support order was made. In other words, if that new circumstances had been known or contemplated by the parties at the time of the original order, then a different order would have been warranted.
5. The payor has the onus.
The person seeking the new support order is the one who must prove the change in circumstances has met the legal threshold.
The law strives for certainty, but it also remains flexible enough to address change. If you think that your existing support order has become unfair due to intervening circumstances, a job loss, or other factors, give us a call. We can give you input on your situation, and advise you as to any next steps.
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.