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Modification

During the course of a family law case the Court will make a number of decisions or rulings concerning a variety of issues.  These decisions are referred to by lawyers, judges, and court personnel as either ‘orders’ or ‘judgments.’  An order can be either written or oral. Judgments are always written.

If you believe an order or judgment in your case was made incorrectly, was the product of fraud or misrepresentation by the other party or a third party, contains errors in the law or the facts of the case, or is no longer appropriate because circumstances have changed, we can help. 

We can provide you with information as to how, where, and when to ask the Court to change or modify an order or judgment, and counsel you as to the legal and practical considerations involved in making a request to change or modify an order or judgment.  In addition, we can draft and submit to the Court an appropriate request to change or modify an order or judgment on your behalf.

If you would like to discuss changing or modifying an order or judgment made by the Court in your case, please contact us to schedule an appointment for a free consultation.

If you would like more information about the law and procedures for making a request to change or modify an order or judgment, please continue reading. 

How Does a Court Make an Order?

The Court makes orders or judgments in one of three (3) ways.  They are:

1.         After a trial or hearing with both sides present: 

In this case, both sides are present during the trial, testify, call witnesses on their behalf, and present whatever evidence they believe will prove their side of the case. After both sides have made their arguments, the court will render the final decision.

2.         After a default by a party in responding or appearing:

In this case, only one side is present and the court proceeds to trial with one side missing. If the plaintiff fails to appear, the court can dismiss the case. If the defendant fails to appear, the court will hold a one sided trial, called an inquest. Usually, plaintiffs will win these cases since there no defense is presented.

3.         After both sides agree to a settlement:

In this case, both sides are present, but instead of having the court make the decision, the parties agree to resolve the case on mutually agreed upon terms.

How Can I Ask the Court to Change or Modify an Order or Judgment?

If a party wishes to change an order or judgment of the Court, he or she must make a request to the Court to do so.  These requests are almost always submitted in writing, but they can be made orally in certain situations.  A request to change an order or judgment can be made in one of the following seven (7) ways:

1.         Appeal

An appeal is a written request made to a higher Court to change or modify an order or judgment made by a lower Court because the lower Court made an error in the law or in the facts of the case.  A party can appeal an order or judgment only where that party appeared and participated in the proceedings which resulted in the order or judgment which is the subject of the appeal.

No new facts or legal arguments may be introduced during an appeal, the appellate Court’s role is limited to determining whether the lower Court acted correctly given the information it had at the time it made the order or judgment.  As a general rule, a Court hearing an appeal will give great weight and deference to any decision made by the lower Court as to the credibility of a party, a witness, or of other evidence. 

The procedure for an appeal is complex, and there are different deadlines, rules, procedures, and requirements for an appeal depending on the Court which made the order or judgment and the Court in which the appeal is filed.

2.         Modification

A modification of an order or judgment is a request to change the terms of the order or judgment because there has been a change of circumstances which occurred since the original order or judgment was issued.  It is generally best to ask a Court to modify an order or judgment as soon as you become aware of the new facts and circumstances which may justify the modification.

3.         Motion to vacate a default or dismissal

If you do not appear for a conference, hearing, or trial but wish to vacate (or undo) any order or judgment made by the Court in your absence, you must ask the Court to vacate the order or judgment.  Any motion to vacate an order of the Court must demonstrate to the Court that you had a legally valid reason for failing to appear and that if you did appear you would have had a meritorious claim or defense to a claim made against you.

4.         Motion to Reargue

If you believe the Court made a mistake in an order or judgment, you can ask it to reconsider its decision.  If you do so, you must demonstrate to the Court which made the decision that it failed to take into account an important legal principle or made some error in determining the facts of the case. Because you are asking the Court to admit it made a mistake, there is only a very small chance this type of request will be successful.  In addition, you can only ask the Court to reconsider its own decision if you actually participated in the proceeding which resulted in the order or judgment you wish to challenge.

5.         Motion to Renew

If you believe that the Court made a mistake in your order or judgment because it did not know about facts or evidence which existed at the time it made its decision, you can ask the Court for a new hearing or proceeding. However, in order for this type of request to be successful, you must demonstrate to the Court that there is a legally valid reason why the facts and evidence was not presented in the first proceeding, and that if it were the result of the proceeding would have been different.

In addition, you can only ask the Court for a new hearing or proceeding if you actually participated in the proceeding which resulted in the order or judgment you wish to challenge.

6.         Vacating an Order or Judgment made on Consent

If you wish to challenge an order or judgment which you originally agreed to, you must ask the Court to undo the order or judgment.  This request can take the form of a motion made to the Court which signed the order or judgment, or it can be in the form of an entirely new case.  Which form is required depends on the nature of the order or judgment.

In order for this type of request to succeed, you must prove to the Court that your consent to the order or judgment was obtained as a result of fraud, duress, undue influence, or some other extreme set of facts or circumstances.

7.         Resettling an Order

Sometimes an order or judgment contains incorrect information because of an innocent error or mistake made by the Court or a lawyer for you or the other party.  In these cases, the order or judgment is changed by re-submitting it to the Court for its signature, and explaining to the Court what portions need to be changed and why the error was made in the prior order or judgment.

What if the Court Changes or Modifies an Order or Judgment?

Under certain circumstances, the other party may be able to ask a higher Court to review the decision to change the order or judgment or ask the Court to reconsider its decision at a latter date.  However, the new order must be obeyed by the other party unless and until another Court rules that the decision to change or modify the order or judgment was incorrect.

What if the Court Does not Change or Modify an Order or Judgment?

If the Court decides not to change or modify an order or judgment, then that order or judgment remains in effect and you must comply with its requirement. However, under certain circumstances, you may be able to ask a higher Court to review the decision not to change the order or judgment or you maybe able to ask the Court to reconsider its decision at a later date.

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