My divorce hearing is in late Dec. I have signed a marital separation agreement followed by a Consent order. Since that time my wife has agreed now to let me have my child on Christmas and Thanksgiving. In addition, she has agreed to take responsibility for a car of ours that was turned in and in collections. I have no idea how to go about modifying this Consent order or what forms to use. I really need some help here on the forms or the proper way to do this. I don’t know if I should file for a modification to the existing separation agreement or am I supposed to modify the Consent Order. Please help.
For any terms that are included in the separation agreement, these can be modified upon the agreement of both parties assuming your separation agreement allows for this (most do). You would need to type an amendment document that states the replacement language, referencing the paragraph in the separation agreement that is being modified, and you and your wife will need to sign the amendment document and your signatures must be notarized.
If your custody terms are in a consent order, then changing only Christmas and Thanksgiving is not enough to be modified by the court. To modify a child custody order, you must show that there has been a substantial change in circumstances affecting the wellbeing of the minor children. Deciding to change the holiday schedule will not qualify as a substantial change in circumstances. However, many consent orders will allow for minor modifications to the order as long as both parties agree. If your consent order states this, then you do not return to court for this minor change.
If your equitable distribution (property division) terms are in a consent order, then it is final and the equitable distribution order cannot be modified.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Hi Anna: I would like you to prepare a Consent Order Amendment that was based on my Marital Separation Agreement/Consent order made in 2017. We are scheduled for the divorce hearing in late Aug 2020.
In a part of the Consent Order, I signed it stated I was in default of the financial provisions of the parties Separation Agreement and Property Settlement. At that time it was true. (2017) However, for the past 2.5 years, I made all the payments for her Credit Cards, etc.
Unfortunately, I had recently filed for an Absolute Divorce before I sent the wife a modification agreeing I was no longer in default of my financial provisions.
Now in her response to me filing for an Absolute Divorce, her attorney stated that my wife/defendant prays that the parties Separation Agreement and Property Settlement Agreement be incorporated into the judgement for divorce to the extent it is not modified by Consent Order previously entered.
I want to file something/have the wife served with your Consent Order Amendment if thats what i need. I know the wife won’t sign it just to be difficult, however, I have bank records to prove I’m no longer in default and making all payments on time.
All my court fees are waived because of my low income. I’m pretty sure all I need is the document prep by you and what form I need to fill out at the clerk’s office and what to say to the judge at my divorce hearing.
Respectfully Yours, Kevin Gill
Kevin Charles Gill
3019-R Cottage Place
Greensboro, NC. 27455
Since your separation agreement is not already incorporated into a divorce judgment yet, you and your wife can enter into an amendment of the separation agreement by preparing the new language for the paragraph(s) to be replaced and both of you signing the amendment document with your signatures notarized.
Once the separation agreement is incorporated into a divorce judgment and becomes a court order, you’ll have to file a motion to modify the consent order and the motion must be based on a substantial change in circumstances for alimony provisions. For equitable distribution provisions, it would not be able to be modified.
If your case is in Guilford County, we will be unable to handle it as we handle cases in the Triangle area.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Hi Anna, what happens if my wife won’t sign the amendment. She is now giving me mixed signals and I’m pretty sure she won’t sign. What can I file to show the court that I am no longer in default of the financial provisions for a few credit cards as listed in the Consent Order?
I did miss a few of her closed CC accounts. However, I’m making all the payments on time via a collection agency.
My wife’s attorney wants the consent order to be included in the divorce and specifically noted the judge recognize that I was in default of financial provisions back in 2017-2018.
I think all I need to do is file a proposed amendment of the Consent Order and file it with the clerk of courts and have the wife served the papers. But I have no idea as to what form, the cover letter I should use. I’m guessing I need to include a copy of the consent order and reference the portion that needs to be changed. Please help. Kevin
Kevin Charles Gill
3019-R Cottage Place
Greensboro, NC. 27455
If the amendment is a factual correction, then there should be no issue in both parties agreeing to sign it. You could state in the amendment that while you were in default during a specific time period, you are current now. Otherwise, based on the information you’ve provided, it wouldn’t make a difference whether you were in default 3 years ago or not if all issues have since been corrected.
You should send the proposed amendment to your wife’s lawyer. If there is still no agreement by the court date, you can explain to the judge your position and it is possible to enter into an amendment with a handwritten document on the court date.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.