Issues Subject to Modification in Family Law: A New Model

Abstract

Legal systems in the United States have accepted that issues of child support, custody, and alimony may be modified, even after final judgment or agreement between parties. The standard for when modification is appropriate is the occurrence of a “substantial change in circumstances.” This unclear standard contributes to prolonged litigation, causes family disputes to remain open, and violates the fundamental principles of finality and res judicata. However, the issue of property distribution, although very much interrelated with matters subject to modification, cannot be relitigated along with them. This Article challenges both aspects of the current practice.This Article presents two opposing arguments as a basis for a new model that attempts to achieve a good, fair, and more efficient balance of competing interests. One argument suggests broadening the application of issues subject to modification, and applying it to the distribution of property as well. The second argument, on the other hand, suggests eliminating relitigation and applying, instead, the principle used for the legal system in general: res judicata. A new model suggests both following an intermediate path and adopting the system of periodic payments from tort law, with its accompanying fixed legislative rules for relitigation and modification. The model proposes defining the present substantial change in circumstances standard through clear guidelines for modification. The Article further suggests enhancing this model with an innovative approach called “effective support.” This approach ensures the consideration of property matters that are involved in issues subject to modification, while also preventing their relitigation. Any modification of support will relate to all of the effective support and not only to the amount of an actual monetary payment. The new model is fairer from the perspective of tax considerations, recognizes the significance of intangible property, avoids the need for indemnification stipulations, prevents the sale of family property; is consistent with the principle of “clean break,” and assists both the couple and the legal system in delineating a clear and stable roadmap with respect to disputes following divorce.