Motion to Modify a Family Law Judgment
By filing this motion, you are asking the court to change something in your court judgment or a prior order. You must be able to show that there has been a "substantial change in circumstances" since the last court order.
Substantial Change In Circumstances could include:
- A change in income for either party that would change the child support order by 15% or more, up or down. Read more under "Tips" below
- A change in a parent's schedule or where a parent lives which requires a change in the visitation.
- A change in the ability of one parent to be fully involved in the life of the child, requiring a change in the child's primary residence or the division of parental rights and responsibilities.
- A change in a party's financial situation that might call for a change in spousal support (alimony).
You are unlikely to get a change in the judgment unless it relates to spousal support, child support, or other child-related issues. Once an earlier order becomes final, most other parts of that order cannot be changed.
Generally, resist filing a Motion to Modify too soon after the court gave the original judgment. Your disagreement with the court's earlier order is not grounds to file a Motion to Modify.
If 3 years have passed since your most recent child support order, you may file a motion, asking for a change in child support, without having to prove "substantial changes in circumstances."
To file your motion, go back to the District Court where you got your judgment. In some situations, you may be able to get a different court to hear your motion. But you would probably need the help of a lawyer to get your case moved.
Here's What To Do...
Step One: Court Forms
Get the forms packet for a Motion To Modify from the court clerk or get most of the forms online. Read the instruction page carefully. Review your original judgment and any earlier orders changing the judgment. When you fill out the motion form, you will need to explain which court order(s) and which parts of those orders you want changed.
Be ready to pay these court costs:
Note: There is no filing fee for a Motion to Modify child support only.
If you have a low income and can't pay these fees, ask the clerk for an Application to Proceed Without Payment of Fees and Indigency Affidavit. Fill these out, along with the other court forms. The clerk, or a notary public, must witness your signing the Indigency Affidavit. If you need help with filling out these forms, go to our page on Court Fee Waivers.
If you receive TANF, SSI or general assistance, the court should waive the fees. Contact Pine Tree Legal Assistance if you are denied.
Step Two: Complete the Forms
Fill out the heading portion of the forms by copying from your original judgment. The court location, docket number, and names of the plaintiff and defendant stay the same. If you can't find your judgment, buy a copy from the clerk.
Next, on the Motion form, if you are filing for a change in child support only, check the box at the top right under where it says Motion to Modify.
Fill in the date of the judgment or order you are trying to modify. Check one or more boxes to indicate the type of changes you want to make.
Then fill in the child information requested and answers to the questions about public assistance.
If your children have received TANF (formerly AFDC) or MaineCare (formerly Medicaid), you must send a copy of the Motion to DHHS at the address provided.
Next, explain in detail the the Substantial Change In Circumstances that supports your request for a change in the prior judgment.
Note: If you or your children are victims of domestic violence, and you are afraid to disclose your address or phone number on the forms, go here for more information.
Next, complete the other forms in your packet. Fill in all of the blanks.
Step Three: Serve and File the Forms
You must give or send copies of your completed forms to the other party before the court will hear your case. The forms packet you got from the clerk or online tells you how to do this. Follow the steps carefully. When you make copies, make two - one for yourself and one for service.
Note: Instead of sending the forms by regular mail, you can hand deliver them. In either case, you need to get a signed "Acknowledgement of Service" form from the other party. If that person won't sign the form, get a Deputy Sheriff to serve the papers or try the certified mail option.
You may not be able to find the other party. If you have made all reasonable efforts but still cannot find him/her, the court may let you do Service by Publication. Ask the court clerk for a free Service by Publication forms packet. Follow the instructions on the cover sheet. This kind of service costs a lot. If you cannot afford to pay for it click here to find out how to ask for a fee waiver.
After serving copies of the papers, file all of your original forms with the clerk. If there is a filing fee and you cannot afford it, ask the clerk for an Application to Proceed Without Payment of Fees and Indigency Affidavit, if you did not do that earlier.
If you and the other parent agree to all proposed changes, you can use a special court rule to avoid going to court. Here are the steps:
- Write out your agreement.
- Both of you sign the agreement before a Notary Public.
- File your signed agreement with your Motion to Modify (and all other required forms).
A Judge will review your agreement and decide if he can approve it. If he has any questions or concerns, he will tell the clerk to schedule a conference to discuss those concerns. Both parents should come to court for that conference. If the court approves your agreement, the clerk will mail the amended Order to both parties.
Note: On a Motion to Modify child support only, the clerk will wait, up to 30 days, to see if the other party files a response. If there is no response, the clerk will schedule a final hearing on the motion (skipping the following steps). However, if the other party does respond, or you are asking for the support amount to be lowered, you will go on to Step Four.
Step Four: Case Management Conference
Attention Portland Court users! This court is trying out a pilot project. You will follow different steps from this point forward. See a video and read more
About two weeks after you file your papers, the court clerk will mail both parties a notice. It will tell you where and when you will have your first meeting with the court's Family Law Magistrate (Magistrate). (On a Motion to Modify child support only, you may wait longer. See end note at Step Three above.)
If you are the person who was served with the motion, you will get the same notice, along with two court forms: an “entry of appearance” form and a child support affidavit (where child support is an issue). Fill out the forms and return them to the clerk before the conference. If you oppose the motion, you should also file your written response within 20 days. For motions to modify child support, your response and request for hearing is due within 30 days. If you file nothing with the court, you could be defaulted. Click here for more about drafting a response.
Finally, give or mail to the other party copies of all papers you file with the court, and keep copies for yourself.
To find out what will happen next, read on. The rest of this information applies to both parties.
Go to the conference and be on time. At the conference the Magistrate will go over the issues with you. If you and the other party agree on how your judgment should be changed, the Magistrate can give a written order to make those changes. If you cannot agree, the Magistrate will probably order that you go to mediation. In some courts you may attend mediation on the same day as the conference.
The Magistrate's order will also say what issues still need to be resolved and when the next steps will happen.
If the only issue involves child support, the Magistrate may hold a formal hearing after the conference and give a final order. If you disagree with this order, you may object in writing. You must include an affidavit stating the relevant facts. File your objections with the clerk and give a copy to the other party.
The filing deadline is 21 days from the date the clerk entered the order on the court docket. (This docket entry is usually soon after the Magistrate signed the order.) Then a judge will review the Magistrate's order and your objections.
Be prepared to pay the $80 per person mediation fee at this conference. If you cannot afford this, you may ask for a fee waiver. After the conference, the clerk will set the time for the mediation. Be sure that it is a time when you can be there.
TIP: Read all court notices carefully, and bring to court all the documents that you are asked to bring.
Step Five: Mediation
You must go to the mediation. The mediator will ask you to explain your problems with the other party. The mediator will also try to help you find agreement where you can. You must mediate in "good faith." This means that you will make an honest effort to come to an agreement. But you don't have to agree to anything that you believe won't work or is unfair.
The mediator will meet with each party privately at the beginning. If you have been abused by the other party or you are afraid, tell the mediator about this in the private meeting. You may ask to be in a separate room from the other party during the mediation. Read more about this.
If you still disagree on any issues by the end of the mediation, you will be sent back to the Magistrate, or to a Judge, for a pre-trial or status conference. (Go to Step Six.) If you do agree on any issues, you will sign a written agreement, which will also go back to a Magistrate or Judge. If the Magistrate approves your agreement, she will write an order. The order will change your judgment to follow your agreement.
Step Six: Pre-Trial or Status Conference
At this conference, the Magistrate will look at what has happened in your case so far and decide what needs to happen next. As before, if you can now agree on all issues, you can get a final order. If you don't agree, the Magistrate might send you back to mediation or set up other steps that he thinks might help you to move forward. If your case is ready for a final hearing, he will ask the clerk to set a time for the hearing. If the only issue is child support, the Magistrate may hold the hearing then, or at a future date. If you have other issues, you will have a later hearing with a Judge.
Step Seven: The Hearing
This is a formal court hearing. The Judge or Magistrate will hear each side. You can testify for yourself, bring witnesses, and present documents. Court rules of evidence and procedure will be followed.
To prepare for the hearing, plan what you need to say. Be ready to tell what has happened. If you brought the motion, be ready to explain the substantial change in circumstances that calls for a change in your court order. If you are opposing the motion, be ready to explain why the prior Order should not be changed. You may want to make a list of the major facts and points you need to make. If you know people who have first-hand knowledge of important facts, you can ask them to testify at the hearing. If a witness is unable or unwilling to come to the hearing, you can subpoena him.
The Judge cannot rely on a letter, or even a sworn statement, from an absent witness if the other parent objects. The only way you can be sure that a Judge will consider your witness’s statements is by having that person come to the court hearing and testify.
At the hearing, you will be given a turn to tell your side of the story. You will also have the chance to ask questions of the other party and any other witnesses. The Judge may ask you or others questions. Since you do not have a lawyer, the Judge may help you by explaining court procedures or the law. But she must be neutral and cannot give you or the other party legal advice.
After the hearing, the Judge (or Magistrate) will give a final order. You may get the order that day or later by mail.
If your hearing was with a Magistrate and you disagree with any part of his order, you can file written objections. Deliver or mail this to the clerk and send a copy to the other party. The deadline for filing objections is 21 days from the date the clerk entered the order on the court docket (usually soon after the Magistrate signed the order). Then a Judge will review the Magistrate’s order and your objections and give a final order. If you miss this 21-day deadline, you waive your right to any further appeal.
The deadline for appealing a Judge's final order to the Maine Law Court is 21 days after the clerk enters the order on the docket. File any appeal with the District Court clerk. You will probably need a lawyer to help you go forward with an appeal. If no one files an appeal, the order becomes final in 21 days.
Both you and the other party are responsible for following the final order. All of the terms of your original judgment, except those that were changed by the new order, are still in effect.