Once a divorce judgment is issued and the 30-day appeal period has passed, the divorce itself is final and cannot be undone. However, specific terms of the “separation agreement” are not set in stone (actually, the divorce order is what dictates the terms of the divorce).
We explain what can (and generally cannot) be changed in the separation agreement after divorce, how to go about requesting changes, and why having a family lawyer guide you is highly recommended.
The Divorce is Final, But the Terms of the Separation Agreement Can Be Changed
Harshdeep Jakhar, Associate Lawyer at Juriscorp Law, says, ”Canadian family law recognizes that what worked at the time of separation or divorce may not work years later.”
For example, matters like parenting arrangements, decision-making responsibility, child support, and spousal support are not “final” if life circumstances change significantly.
A “material change in circumstances” means a substantial change that was not anticipated or accounted for in the original agreement, and that makes the current terms unfair or unworkable.
Note that you generally cannot approach the court to alter a divorce order just because you regret the separation agreement you made prior to the divorce being finalized.
Property and debt division terms, for example, are usually intended to be final. Once it is finalized in a divorce, those terms are usually considered final and very difficult to reopen without extraordinary circumstances (such as hidden assets or a clear flaw in the original agreement).
What Terms Can You Change? (with Examples)
Typically, the terms that can be changed are those related to children and financial support. Some examples include:
Parenting Arrangements (Decision-making Responsibility and Parenting Time): Changes to who the children live with or how much time they spend with each parent can be made if circumstances demand it. For example, as children get older, their schedules and needs (school, activities, preferences) may change, prompting a review of the parenting plan. Any modification must continue to serve the best interests of the child.
Child Support: Child support arrangements can be varied post-divorce to reflect a significant change in either parent’s financial situation or the child’s needs. For instance, if the parent paying support loses their job or, conversely, gets a substantial raise.
Spousal Support: If spousal (partner) support was part of your separation agreement, those terms can likewise be adjusted if there’s a material change in financial circumstances. For example, the paying spouse’s income drops significantly due to illness or retirement. (As with child support, financial disclosure documents would be needed to prove the change.)
How to Go About Changing Your Separation Agreement
Altering a separation agreement after divorce can be a sensitive and complex process. It’s not as simple as just informally agreeing and moving on. To be legally valid, changes must be made correctly.
The most important thing to do: consulting an experienced family lawyer. A lawyer can assess whether your reason for changing the agreement is likely to meet the legal threshold.
The Alberta government itself recommends speaking to a divorce lawyer or family lawyer when creating or changing separation agreements. The reason is simple: complexity. There are significant evidentiary and procedural requirements; unless you are extremely well-versed in them, handling them yourself is inadvisable.
Showing a “Material Change in Circumstances”
It’s important to approach post-divorce changes with realistic expectations. Just because you ask for a change doesn’t guarantee you’ll get it, especially if the other party opposes it.
“Material change in circumstances” is the fundamental test. The onus is on the person requesting the change to prove that there has been a significant, unforeseen change in the situation since the original agreement or order was made.
The change must be one that, had it been known at the time, would likely have led to a different arrangement. Minor or temporary fluctuations (for example, a brief loss of income or a one-time disagreement over scheduling) usually won’t suffice.
Having a lawyer present in your case can make a huge difference. An experienced divorce lawyer will know how to frame the material changes and legal arguments to give you the best chance of success.
If you are looking to alter the support or custody arrangement with your ex, speak to our divorce lawyer today. We bring years of experience negotiating agreements, representing individuals in courts, and helping people get back to a happy, thriving family life.