Legal Questions? / Legal Answers!
Filing For A Motion To Modify.
"If a Judge has issued a final court order on your case and you want to change anything in that court order, you can file a Motion to show why changes should be made. There are three types of Motions that most use in Family Court. They are: Motion To Modify, - Motion To Enforce - and Motion For Contempt. Each Motion should be a Post Judgement Motion Filling. A "Post Judgement Motion meaning a Final Court Order has already be established and you are looking to change something in that order. This could be Child Support Amount, Visitation Schedule changes and even to change Custody of who the children reside with. Just a word of caution here, if both are not in agreement with any change wanted on the Court Order, a Family Attorney representing you, may be your best bet."
Motion To Modify Child Support
What can I say about your Child Support? Current, or Past?
Child Support is paid to the parent with physical custody, to cover all things your child has. Not just clothes, & toys. I cringe when I hear someone say "I pay my child support and my kid still needs boots and clothing." Of course they do! Do you think your child support pays for only that? Your child support helps pays for the rent, lights, food, everything your childr(en) need. You are helping to pay for their up-keep. My hat goes off to the parents who know this. Those who realize that just because their ability to pay at the moment may be unavoidable, they sill want to contribute.
To those who work under the table just so they don't have to pay. Shame On You! Your child(ren) are the ones who suffer. But if there is a Child Support Order already against you and you do not pay, two things happen. Your balance continues to increase weekly, and the State takes away your rights to have a license. Not just a Drivers license, a Fishing, Hunting, and Boating license, a Daycare license, Teaching license, Social Worker License, Plumbing license, any license you have to apply for through the State of Maine, can be denied.
I know, sometimes paying your Child Support isn't that easy. The parent with custody of the child(ren) has just applied for benefits through D.H.H.S. By doing so they have just signed over the right for D.H.H.S. to collect child support from you. How much? If you have a Divorce agreement, you'll pay that amount ordered in it. If the amount ordered is now less that the Child Support Table allows, they may take you to court for an increase. If their is no child support order, the amount will then depend on the number of children involved and how much money you earn. Your "profession" will determine what the amount "earned" could be. Then with the aid of the Child Support Table, they will determine what amount you will pay. If your unemployed don't worry, D.H.H.S. uses that same Child Support Table to determine how much you COULD earn! This amount, which you will be charged each week, is based on your "Ability To Gain Employment and Earn That Amount".
How great is that! No court to worry about. All tidy and neat.
However, not very fair in the economy we now are facing. Especially if you now find yourself unemployed. D.H.H.S. isn't going to care you lost your job. You'll have to take them to court and show the Judge your current situation. You have to request it, by filing a Motion to Modify your Child Support payments. Because when YOU want to change your child support amount, you have to file a Motion to Modify to court and do so. D.H.H.S. will be there. Child support is based on both parents combined income, because both parents are libel for their child(ren). Problem with this is, usually when one parent collects State benefits, they do so because they do not have an income! They do not have an income and your "ability to pay" becomes the only income used to base your child support amount!
I believe the Child Support Table is not a fair and accurate decision for basing your Child Support Amount. My belief however, isn't going to change anything.
Reasons To File a Motion To Modify.
There are several reasons to File a Motion to Modify Order. One of course is to ask for a modification of a current child support Order. But, you can also file a Motion to Modify Order because:
1. Some of the Parential Righst or Responsibilities issues need to be changed.
2. Contact or Visitation schedule needs to be changed
3. Primary Residence of the child(ren) needs to be changed.
4. It may lower your currant Child Support Obligation.
5. D.H.H.S. has based your child support amount on the wrong profession.
6. At this time you are unemployed due to a lay off, or an accident.
7. Your current wages are far less than when the Child Support was ordered.
8. The other parent has obtained employment.
This motion is used to change something in your final court order. However, it is not something you can file just because your upset over a missed visitation date or an attachment of your paycheck has been done for child support. You must be able to show that there has been a "substantial change in circumstances" since the last court order. These changes include a change in your income amount, work status, continued visitation issues or a decline of your health. Safety issues involving your child, your ability to to care for or visit the child and of course.. custody changes.
I was told by the Clerk of Court that the filing fee would be $60.00. However after reviewing the instructions on the packet, it says that if you are filing just a Child Support Order, the filing fee does not apply. It's Free!. The $60.00 filing fee would only apply to the other reasons listed above.
"Just a word of caution. You may want to rethink going up against D.H.H.S. to modify this Order if you are employed or making more money now than when the Order was written. The amount from the Child Support Table could increase. Costs like Child Care ( so the other parent can work ) medical and dental insurance, could be an issue. Remember though, most companies do not allow you to add anyone to your insurance until a specific enrollment date allows. If medical and dental insurance is brought up, explain that you will have to wait until that date approaches before you can put anyone on your insurance. If you do not know the date, tell the Judge you would be willing to find out. The child(ren) need medical insurance and will not taken off Mainecare. You could be ordered to add them when the date arrives, but I haven't heard of anyone, without having a very good income, having to do so. Remember, D.H.H.S. only allows the other parent to collect for a certain amount of time. They help them seek employment and in fact, it is part of the deal to collect benefits. Sooner or later the other parent may go to work. If the other parent is working, they are also libel for all the "extras" as well. Maybe filing the Motion to Modify will lower your child support amount and if insurance is an issue, both working parents are responsible."
Motion to Enforce - This Motion is used if the other party isn't following the Final Court Order. This form is used for child support enforcement, or for any other order the person is not following per the Judge's order. If you'd like it enforced and you want the court to enforce it, they can do so in several ways including attachment of wages and jail.
Motion for Contempt - This step is used if the other party has already been ordered through a court order and a Motion to Enforce, and they still refuse to follow the order. You will need a Judge's approval to file this Motion. You will end up having a formal hearing in front of the Judge and there is no chance of Mediation. At the formal hearing you will have to show why and how the other person is not following the Final court Order and show that you believe they were capable to do so.
The website at Pinetree Legal and V.L.P. has the Motion forms you need and the instructions to fill them out. Click Here.
If you would like to comment feel free to e-mail me at
My Final Thought...
"Motions To Modify cannot be filed just because
you do not agree with the Court's final order.
You need to show a substantial change of
circumstances in order to file a Motion.
This may include a loss of employment, a
permeant injury, or safety issues regarding
your child. For those looking to increase
their child support order, a Motion to Modify
can be filed after 3 years, without having
to show a substantial change of circumstances.Any change in your income or the other person's
income might change your child support order
by 15% or more,either increasing it or decreasing
it. If you need more help with filling out
court forms or have other questions about
your court case, you may be able to get help
from a Courthouse Assistance Project run
by the Volunteer Lawyers Project. The V.L.P.
has Attorneys in court houses around Maine
to help with advice on family law matters
and to help fill out and check your court
forms. V.L.P. has a schedule for their Courthouse
Assistance Program on their website or you
can click here."