Modification of divorce decree
Modification of divorce decree
Article 286 paragraphs 1 and 2 CC provides that the court may order that the maintenance contribution be increased or reduced as soon as there are specific changes in the child's needs, the father's and mother's resources or the cost of living (paragraph 1). If the situation changes significantly, the court will modify or cancel the maintenance contribution at the request of the father, mother or child (para. 2). An action to modify the judgment presupposes that there have been significant and lasting changes in the situation of the debtor, the creditor or the custodial parent, which require a different set of rules. The Federal Supreme Court has made it clear on a number of occasions that the purpose of the variation proceedings is not to correct the first divorce decree but to adapt it to the new circumstances of the parents or the child. A fact is considered to be new if it was not taken into account in determining the maintenance contribution in the divorce decree, so it is not decisive whether it was foreseeable at the time. Nevertheless, it is presumed that the maintenance contribution was fixed taking into account foreseeable changes, i.e. those which, although future, are already certain or highly probable. The decisive moment for assessing whether a new fact has occurred is the date on which the application for modification was filed.As regards the significant nature of the change, the loss of a job by the debtor or the custodial parent and a significant change in the debtor's economic situation have been considered as significant changes by case law. Furthermore, the occurrence of a new event - significant and lasting - does not automatically lead to a change in the child maintenance contribution. In your case, you have the possibility of filing a petition to modify the divorce decree insofar as your income has decreased significantly while that of the child's mother has increased. The judge will then have to re-establish the maintenance contributions by updating the elements taken into consideration in 2012.
