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.
- A change in a parent's schedule or where a parent
lives which requires
a change in the visitation.
- A change in a party's financial situation that might call
for a change
in spousal support
(alimony).
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Tips:
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."
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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...
Get the forms packet for a Motion To Modify from the court
clerk or click on the box at the right.
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:
Service: $20.00 or
more
Filing fee: $60.00
Mediation: $80.00 for each party
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.
Note: If your children have received TANF (formerly AFDC) or
MaineCare (formerly Medicaid), you must send a copy of the Motion to DHS
at the address provided.
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Next, explain in detail the Substantial Change In Circumstances
that supports your request for a change in the prior judgment.
In the last section, briefly state what you want the new order to say.
If you need more space, you can go onto another sheet of paper.
 This
is a sworn document. You must sign it in front of a lawyer,
notary public, or court clerk
who will notarize your signature.
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, click
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.
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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.
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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.
| 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, a Magistrate can act
on your motion without a court conference or hearing. 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 |
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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.
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About two weeks after you file your papers, the
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.)
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If you are the person who was
served
with the motion, you will get the same notice, along with two court
forms. Fill out the forms and return them to the
clerk
before the conference. If you oppose the motion, you must also file your
written response within 21 days. If you don't do this, the court may
assume that you agree with what the other party is asking for and
default
you. (If the motion is about modifying child support and you object, you
are also required to ask for a hearing, in writing, within 30 days. You
can combine this request with your written objections to the motion.)
Click
here for more about drafting a response.
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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.
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.
Note: If the Magistrate
issues an interim
order, you cannot appeal it. That order stays in effect until the
Magistrate or Judge gives a final
order.
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.
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.
Click here to 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.
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.
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 or Magistrate
may ask you or others questions. Since you do not have a lawyer, the Judge
or Magistrate may help you to get through the court procedures. 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.
RETURN TO TABLE OF CONTENTS
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Notice
© Pine Tree
Legal Assistance
January 2007
Sometimes the laws
change. We cannot promise that this information is always
up-to-date and correct. If the date above is not this year,
call us to see if there is an update.
We provide this
information as a public service. It is not legal advice.
By sending you this information, we are not acting as your lawyer.
Always consult a lawyer, if you can, before taking legal action.
Please review our full terms-of-use agreement
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