Filing for Modifications in Nebraska
After months of waiting and litigation, your decree has been entered. You may or may not agree with its orders, but it is the order of the court to be followed. That is, unless and until is it modified. In Nebraska, it is possible to file for a modification of your decree based on a material change in circumstances that has occurred since entry of the last order. The following are some basic points to keep in mind before filing for a modification of your decree.
- Material Change in Circumstances Since Entry of the Last Order: The legal standard to file a modification is a material and substantial change in circumstances since entry of the last final order. Stated differently: Would the Court have issued a different ruling had it known at the time about the allegations in your complaint to modify? This threshold question is critical to answer in the affirmative because, if this is not the case, then your complaint will likely be dismissed or denied for having failed to meet your burden of proof. And, if you are unsuccessful in modifying your decree, there is the chance that the opposing party will request attorney fees and the court grant the request.
- Time Element: Another consideration before filing to modify your decree is how much time has passed between entry of the last order and the filing of your complaint to modify. For example, if you are filing to modify custody and parenting time, has it been only three months since your decree was entered? If so, then the court may frown upon the filing of a modification so soon after the last order. If you are filing to modify child support, has the material change you are alleging lasted for at least the past three months and can it be reasonably expected to last the next 6 months? Will the material change result in a 10% variation of the current support obligation? If not, then you have failed to meet the statutory guidelines to modify child support. Time is another crucial element to consider when thinking of modifying your decree.
- Alternate Dispute Resolution: While it is not strictly enforced by most courts, the law requires you to attempt remediation of your parenting plan issues before filing your modification. You will certainly be ordered to mediation post-filing. You can save yourself time and attorney’s fees by attempting mediation before going back to court. And, if remediation works, then you may not even need to retain counsel to have your new parenting time and support obligations entered by the court. However, any agreement reached in mediation will only be binding if an Order of Modification is filed with the Court.
It may be time for a change, but before filing your Complaint to Modify, make sure to keep these and other points in mind. For further assistance and advice with this and other issues in your case, please contact the experienced team of family law experts at Slowiaczek Albers & Whelan PC, LLO, to schedule your initial consultation.