Nobody starts anything hoping to fail. Especially in litigation, we strategize, project and predict the outcome before even filing many times. This rings true especially in family law modifications- where we are seeking to change the terms of custody, child support or access in suits affecting parent-child relationships. In Modifications we are potentially opening Pandora’s Box.
Opening Pandora’s Box refers to getting into a situation over which one has very little control over. Sometimes, we cannot predict how the dominoes will fall, one-by-one, and at times inadvertently hit a target seemingly free from this pathway. So, when I review an egregiously terrible Final Decree (not written by my firm of course), either by drafting or merit, and the client wants to disembowel the order, I must ask the client: “are you ready to rumble?”
There is nothing simple or black and white about proving a “material and substantial change.” Conversely, when you open the door to this pathway of missteps, you send an invitation to the opposing side to join you in this Molotov cocktail tossed into a sea of gasoline contest. Beware. Expect salacious allegations, tit-for-tat, creative evidence, and probably a Temporary Restraining Order to bootstrap the mess into a decipherable, legitimate problem.
Many family lawyers will over-promise and under-deliver to lure clients into modification. It’s your last glimmering hope to right the wrongs of your past. Yet, it could result in a lawyer tab with a lot of commas and many zeros. Expensive.
If you open the door, you send a written, flaming invitation to challenge even the good parts of your underlying order. Those well-written, solid terms that you wanted to retain are now subject to argument. I call this decree erosion. While you perceived that you were merely tweaking the terms, everything is now at stake, and even the good language may accidentally erode in the wake of the cleansing the bad.
I am not writing to discourage modifications with merit. I am merely encouraging clients to engage in a good self-examination to analyze whether modification is your best path. In fact, 50% of my business entails modifications of orders in family law, so I would be a hypocrite to suggest that they are useless or wrong. However, after defending against those unmeritorious modifications, I highly recommend asking the following questions:
- Is there a true “material and substantial change” since the last order?
- Am I filing within one year of Final Order? If so, there are heightened pleading requirements. Such as, “an imminent threat to the safety and welfare of a child” or an instance where a child above the age of 12 confers with the court to discuss choice of primary parent).
- Am I attempting to create new evidence to justify modification?
- Does this modification serve my child(ren)’s best interests?
People spend more time creating a dating profile, analyzing the terms of a home refinance or a car purchase sometimes than diving off the cliff to modification. I merely want to caution and educate the world about modifications. And just think for a moment of Pandora’s Box.