Modifying Divorce Agreements: Requirements, Procedures, and Cases Explained
In this article we are going to tell you in which cases the divorce regulatory agreement can be modified , what the requirements are, and what the procedure is to modify it .
The divorce agreement
In the case of divorce by mutual agreement , the regulatory agreement is the document agreed upon and signed by the spouses, which contains the personal and property measures that will govern after the divorce.
Once the regulatory agreement is judicially approved, the measures contained therein must be complied with by the spouses.
Can the regulatory agreement be modified?
The answer is YES , and the procedure is slightly different depending on the way the divorce is processed.
Divorce by mutual agreement can be processed by:
- The Judge, when there are minor or incapacitated children .
- The Lawyer of the Administration of Justice, if there are no minor or incapacitated children .
- A Notary , if there are no minor or incapacitated children.
In all three cases, the definitive measures agreed in the regulatory agreement may be modified .
Divorce by mutual agreement processed by the Judge
The measures approved by a Judge may be modified judicially or by a new judicially approved agreement as many times as the new needs of the children so advise , or the change in the circumstances of the spouses taken into account when approving them.
The measures that the Judge adopts in the absence of agreement or those agreed upon by the spouses judicially, may be modified judicially or by a new agreement approved by the Judge, when the new needs of the children or the change in the circumstances of the spouses so advise.
Divorce by mutual agreement processed before the Lawyer of the Administration of Justice or before a Notary
Also, in these cases, the agreed measures may be modified through a new agreement.
In the last paragraph Civil Code indicated that:
The measures that have been agreed upon before the Judicial Secretary or in a public deed may be modified by a new agreement, subject to the same requirements demanded in this Code.
Requirements for the modification of the regulatory agreement
The requirements that must be met for the action to modify measures contained in the regulatory agreement to succeed, according to reiterated jurisprudence, are the following:
- That a change or alteration of circumstances has occurred after the judicial resolution or, exceptionally, that even though it was prior, it was unknown.
- That said alteration is substantial , that is, if it had existed at the time of the divorce , another measure would have been adopted.
- That the alteration is permanent, and not transitory .
- That the change of circumstances or alteration is unforeseen , beyond the will of the person seeking the modification .
- That the alteration can be proven by the spouse requesting the modification . All means of proof that are considered relevant may be used.
Procedure for modifying the regulatory agreement
The regulatory agreement may be modified in two ways :
- Mutual agreement.
- For one of the parties.
Let’s see what the procedure is for each of them ( Civil Procedure Law ).
1) Modification of the agreement by mutual agreement
The procedure for modifying measures may be initiated by mutual agreement by both spouses or by one of them with the consent of the other .
The demand for modification of measures will be accompanied by a proposal for a regulatory agreement.
In this case, the procedure will be by mutual agreement and will be governed by the rules applicable to divorce by mutual agreement in Civil Procedure Law .
2) Modification of the agreement by one of the parties
The procedure for modifying measures may be initiated by one of the parties without the consent of the other .
Lawyer and attorney assistance
In procedures for modifying measures, it is necessary to be represented by a solicitor and assisted by a lawyer .
If the modification procedure is by mutual agreement, both parties may be represented and assisted by a single attorney and lawyer.
Which Court is competent to modify the regulatory agreement?
The Court competent for the modification of definitive measures in all types of processes will be the one that agreed on the measures that are intended to be modified.
This new regulation may cause problems if the former spouses live in a location other than the location of the Court that agreed to the definitive measures.
In the event of a change of address of either spouse , the court competent for the procedure for modifying definitive measures will be the same one that approved them.
When can you request a modification of the regulatory agreement?
As long as the required requirements are met, the procedure for modifying measures can be requested in the following cases :
- Modification of parental authority of minors or incapacitated persons.
- Modification of guard and custody .
- Modification of the visitation regime .
- Modification or termination of the use of the family home .
- Modification or termination of alimony .
- Modification or termination of the compensatory pension .
However, this procedure will not be applicable for :
- The request for new measures not agreed upon in the ruling . However, requesting modification of a measure may imply the establishment of a new one. For example, if a modification of the custody regime is requested , a new alimony payment may be established .
- Update of measures (for example, alimony).
- Challenge of the agreement due to a defect or error in the consent.
- New assessment of the facts, without there being a substantial alteration of them.
- Nullity of actions of the procedure where the measures were determined.
All of the above is applicable to the modification of definitive measures in contentious divorce proceedings.
It is advisable to have the advice of a lawyer specializing in family law to evaluate the feasibility of modifying the regulatory agreement and the best procedure to do so.