Most people hope that after months and sometimes years of arguing in court over issues involving a division of assets, custody of children, child support, and alimony, that once the court allows your Separation Agreement or enters an order after a divorce trial, that you will never need to go back to court again. Unfortunately, this is unlikely. Former spouses and unmarried parents often find themselves going back to court over and over again because their agreement or the judge’s order isn’t working. There are many reasons the agreement may no longer work for the parties and these reasons include the changing needs of the children, inability to co-parent, and change in a person’s financial circumstances. So what do you do?
In Massachusetts, you can file a Complaint for Modification. Once you file for the Modification and serve it on the other party, s/he will have 20 days to file an Answer to it. Most modifications related to divorce proceedings or custody proceedings between non-married parents involve the children. Language in most divorce separation agreements state that any property division, asset division, alimony provision, or waiver of a spouse’s inheritance is final and cannot be changed because it is treated as an independent contract. Provisions regarding children, however, are always modifiable.The overarching concern for the court will always be the best interests of the child.
When a Modification is filed, it is common to also file a Motion for Temporary Orders. The motion requests that the court take immediate action. For example, if a father is laid off and can no longer afford $400 a week in child support, he can file a Complaint for Modification and a Motion for Temporary Orders requesting his child support be reduced immediately. The court will schedule the Motion for a hearing usually 4-8 weeks later. At that date, the parents will most likely meet with Family Services/Probation to see if they can reach an agreement on father’s motion. If not, the parties will make their arguments to the judge. The court has the power to make a temporary order pending the outcome of the Complaint for Modification. The Complaint for Modification will eventually be scheduled for a pre-trial conference and trial if the parties cannot reach an agreement. It can often take a year before a trial is held so the temporary order will be in place until a decision is made on the Complaint for Modification.
Changing the Child Support Amount
The amount a parent pays in child support can always be modified. There does not need to be a change in circumstances in order to modify a child support order. As parents go through life, it is not uncommon to change jobs, work more or fewer hours, or for the custody agreement to change between joint physical custody and sole physical custody which in turn leads to a change in the amount of child support that should be paid according to the Child Support Guidelines. While the court can deviate from the Child Support Guidelines, most courts will order a parent to pay child support in accordance with the Guidelines.
Changing Child Custody
If you are looking to change the child custody agreement, you will have to prove to the court that there has been a substantial change in circumstances since the custody order was entered and that your requested change is in the child’s best interest. The most frequent changes to custody agreements occurs when former spouses agreed to joint physical custody but it becomes apparent that the parents cannot get along for purposes of joint physical custody or it is too difficult on the child moving back and forth between their parents’ home. A court will not modify an order simply because one or both parties may have buyer’s remorse about the agreement they entered. There has to be a legitimate reason to change a custody order.
Changing the Alimony Amount
If you are looking to modify the amount of alimony you are paying or receiving, there must be a material change in the financial circumstances of you or your ex-spouse, specifically the ex-spouse’s ability to pay and the other spouse’s need for support. Alimony can also be changed if either spouse dies, if the ex-spouse receiving alimonyremarries, if the ex-spouse receiving alimony isliving with a partner, or if the initial alimony award was made beforethe law changed in 2012 and requires the ex-spouse paying alimony to pay for a longer period of time than s/he would have had to pay under the new law. Importantly, the court will not reduce an alimony award if the payor spouse intentionally reduces his or her income and then tries to claim they can no longer afford to pay the amount of alimony they were initially told to pay.
At Sweeney & Associates, we handle contested divorces, uncontested divorces, modifications, and contempts. If you have questions about child custody, divorce, or another family law issue contact Sweeney & Associates for a free consultation. Contact us at (617) 328-6900 or by email at mail@rsweeneylaw.com.