Besides the bulk and weight, there is another reason why we don't inscribe your Divorce Agreement (also known as a Separation Agreement) or other court orders onto granite tablets. Situations and circumstances change, and these changes oftentimes mean that your Massachusetts Divorce Agreement, child support, or custody order may need a divorce modification.
OK, put down your whiteout and red pen! There is a process involved to change your divorce agreement in Massachusetts. Remember that once your divorce agreement (or another court order) is approved by the Judge it becomes either an order or a judgment of the court.
Even if both parties agree to making a change, it is absolutely a better idea to submit the modification to the court for approval. This protects both parties involved.
It is important that your divorce agreement was drafted properly in the first place so that the court has the ability to modify it. There are a few parts of your agreement that are generally not subject to a modification, including the division of marital property which is entered as part of a divorce judgment.
So, what parts of your divorce agreement could be altered down the road? Good questions, and this is something that you really should understand. In my experience, it is not the easiest concept to explain to divorcing clients and generally requires more than one discussion.
So before filing the Complaint for Modification, the first steep is to review your divorce agreement and read the provisions relating to three pesky little words that have a lot of importance: Incorporation, Survival, and Merger. Please click here to read more about these concepts.
Either party may bring a complaint for modification, which is covered under Mass. Gen. Laws c. 208 s. 37; so long as the separation agreement has been merged or incorporated into the judgment of divorce. Before modifying provisions in a separation agreement, or another order, the court must take into consideration all of the relevant circumstances.
The legal standard is that no modification is possible unless the party requesting the modification demonstrates a material change in circumstances since then entry of the earlier judgment.
Areas that tend to be the subject of most modifications in Massachusetts include:
- Child Support
- Custody and changes to the parenting schedule
- Payment of children's expenses, including college
The Alimony Reform Act of 2011 became law on March 1, 2012 and instituted major changes to alimony in Massachusetts. Parts of that statute also address modifications to alimony judgments.
Divorce Modifications – Issues Related to Children
Despite what language may have been used in your separation agreement pertaining to children, the Massachusetts Probate and Family Court may make such judgment it deems appropriate relates to the care, custody, and maintenance (financial support) of minor children, so long as a material and substantial change in circumstances of the parties has occurred and that the modification is necessary and in the best interests of the children.
The 1976 case Knox v. Remick declared “parents may not bargain away the rights of children to support from either one of them.”
Modifications and Financial Issues
Oftentimes financial circumstances change and may warrant a reduction, increase, or termination of payments required in a separation agreement. Here are some examples of situations that may trigger a modification:
- The remarriage of a spouse receiving alimony
- Cohabitation by someone receiving alimony
- A party that was not working becomes unemployed since the Divorce Judgment, or a party has increased income
- A child becomes emancipated and no longer eligible for child support
- A party becomes ill or disabled, resulting in reduced income
- The needs of a child become greater, perhaps due to serious illness or disability
- The retirement of a party, depending on the language in the agreement
- Unemployment, layoff, or other decreased earnings
- Loss of health insurance, or a significant increase in health insurance or other medical expenses
Reaching An Agreement for a Modification
Whether through the services of a divorce mediator, divorce attorneys, or on their own, parties may reach an agreement before or after a complaint for modification is filed. When this occurs, the agreement can be entered with the court by filing a motion.
As you can see, modifications can be complicated. If you think you may need to modify an existing Massachusetts divorce or similar agreement, contact an experienced divorce and family law attorney for advice.