Modification of measures

When and how to proceed with the modification of measures?

Article 90 of the Civil Code establishes in the penultimate paragraph that the measures adopted by the judge in the absence of agreement, or those agreed by the spouses, may be modified judicially or by a new agreement when the circumstances are substantially altered.

In other words, the law allows the possibility of modifying the definitive measures dictated in a previous judgement, after the separation or divorce and its measures have been obtained, if the circumstances that were taken into account have changed.

Normally this change in circumstances can occur either because the children reach the age of majority, which causes the termination of the measures, or when both spouses reach an agreement or one of them has requested it.

It is really important to proceed with the modification of measures before breaching any term of the judgment.

When to proceed:

In order to proceed with a modification of the judgments, a series of requirements must be met:

That there has been a change of circumstances, normally produced by events not contemplated in the sentence.
The change is of sufficient importance to be able to modify the claim.
That the change has not been brought about consciously by the person requesting the modification of measures, i.e. that it is involuntary.
That the change was unforeseen.

How to proceed:

The application for modification of measures may be requested by the Public Prosecutor’s Office or by the spouses. There are two ways of requesting it:

  • By mutual agreement, i.e. with the consent of both spouses.  This application must be accompanied by a regulatory agreement with the new measures agreed by the spouses by mutual agreement. The judge must homologate this new agreement.

The plaintiffs may file the lawsuit in the judicial district of the domicile where they live or in the judicial district of the domicile of either of them. When the proceedings are finalised, the new measures agreed by the spouses will replace the measures that were established in the judgement that decreed the separation or divorce.

  • Contentious. This procedure is governed by the same rules as contentious divorce.

The procedure is initiated by one of the parties, as they have not been able to reach a mutual agreement.

The petitioner submits the request for modification of the measures with the documentation that proves it. The plaintiff files the application for modification of measures, together with the appropriate supporting documentation.

If the application is admitted for processing, it is sent to the other spouse and to the Public Prosecutor’s Office if there are minor or incapacitated children.

An attempt will then be made for the parties to reach an agreement at the hearing before the judge. If this is not possible, the evidence will be taken.

The judge is responsible for deciding whether or not to proceed with the modification of the previous measures. The judge of the municipality in which the spouses are domiciled has jurisdiction. There is also a free choice of court.

In this type of proceeding, the competent court is the court of the municipality where the spouses are domiciled. If both spouses reside in different judicial districts, the judge of the domicile of the spouses or the judge of the defendant’s residence may be chosen.

In conclusion, although the measures laid down in a divorce decree are in principle final, they can be changed by means of subsequent modification proceedings.  It is clear that the procedure is simpler when there is mutual agreement between the parties.

Types of modification of measures

There are several types of proceedings for modification of measures depending on the circumstances:

  • In relation to the children and parental authority: Article 156 of the Civil Code provides that parental authority can be assigned exclusively to one parent when the other parent is unable to fulfil his or her obligations. This happens when one parent goes abroad or neglects his or her children and their interests.
  • In relation to maintenance: A modification in maintenance can occur either when the child has reached the age of majority and maintenance is to be terminated, or when one or both parents have seen their income reduced.
  • In relation to custody: there may be a change from single-parent to joint custody or vice versa. It is important to study the reasons that may lead to a modification of the initially agreed measures and to check that the interests of the children are given priority.
  • In relation to visiting arrangements and use of the common residence. It may happen that the non-custodial parent wants to extend the visiting arrangements. It is important to demonstrate the involvement of the parent in the life of the children. With regard to housing, there may be changes in the measures regulating it, especially in relation to the age of the children.
  • In relation to the compensatory pension: When the pension and the bases for its update are fixed in the separation or divorce judgment, it can only be modified if changes in the fortune of one or the other spouse make it advisable to do so. The new needs of the children (if any) or a change in the spouse’s circumstances may suggest such a modification.

Measures that have been agreed in the presence of the court clerk or in a public act may be modified by a new contract.

It is now also necessary to provide documents proving the change of circumstances on the basis of which the modification of claims is requested.

The judge will accept this change as long as it is relevant and, above all, if it affects the child and his or her interests.

In view of the difficulty that this procedure often involves and the provision of evidence, especially when there is a previous regulation agreed by the judge and correct at the time, in Winkels Abogados we guarantee you good advice to protect your interests and those of your children.