Divorce and Custody Judgment Modification
At times, a judgment made by the court may no longer be appropriate due to a significant change in circumstances of one or both parties involved. An individual can file a complaint for modification in order to address the need for changes to the previous judgment. Although in general, property settlements are not modifiable, things like custody arrangements, child support, and alimony can be altered as needed by the court.
A significant change in circumstances may occur when one party retires and therefore can no longer continue to pay alimony, when the children have grown, or when a party in the divorce cannot work due to disability. The parties involved do not need to show a change in circumstances if they are requesting that the court rule on an issue that was not previously considered, for example, asking for alimony when that matter was not addressed at all previously.
In general, modification complaints must be filed in the state and county in which the divorce was issued unless both parties have moved out of the area. If the complaint for modification concerns modification to child support, maintenance, visitation, or education, there is no filing fee. Otherwise the filing fee is $150. There is an additional summons fee as well as a surcharge. You or your attorney should see to it that the papers are served to the other party. The party then has twenty days to file an “answer” to your complaint. If he or she does not file an “answer” within that time period, you may request that the court issue a date for an uncontested trial. If the other party does file an “answer,” you and your attorney should ask for a pretrial conference to address any contested issues. Both parties will then be notified of the date of trial.
Modification of Property Division
In general, you cannot file a complaint for modification of property division unless you can prove fraud or an error. Property division may be modified when it is concerned to be part of support, such as when one partner occupies the marital home with the children as part of their support entitlement each month. It is important to remember, however, that the court generally will not review property division except in these rare cases.
Modification of Child Support or Alimony Orders
In order to modify support arrangements, there must be a significant change in either the need for support or the ability to provide support. Child support orders may be modified without a significant change in circumstances if they do not meet the Child Support Guidelines. The court considers the same relevant circumstances as were considered during the original hearing, to include the needs of the individuals and children, the assets and debts of both parties, the earning capabilities of each party, if the change is permanent, made voluntarily or involuntarily, and how well the parties have been adhering to court orders thus far.
Support will not decrease if an individual has voluntarily reduced their income. In these cases, the court will consider their income and assets, as well as their ability to earn a specific income. In addition, the court will not consider income from a parent who has children younger than 6 years of age from the prior relationship if that parent elects to stay home.
Common Changes of Circumstance that Result in Modification
Remarriage – if the spouse receiving alimony remarries, this ends their right to continue receiving alimony. If the spouse paying alimony remarries, there is generally not a change in the amount of alimony that must be paid. The only exception might be a situation in which a new dependent has needs that require a tremendous amount of medical support.
Death – in general, alimony ends when the spouse paying alimony dies. The spouse receiving alimony may, however, be able to collect alimony from their estate. Individuals can agree to continue alimony after death or remarriage if they enter into an agreement stating the same.
Cohabitation – cohabitation cannot, alone, serve as a change in circumstances. The party must be able to prove that the cohabitation has significantly changed their former spouse’s financial situation.
Inheritance – a large inheritance can result in a significant change in circumstance.
Alimony Arrearage – if the person can show they cannot meet alimony due to a significant change in circumstances, this may be modified.
If the Child Support Guidelines were used to calculate the previous child support judgment, and situations have created a change of at least 20 percent as indicated by the Guidelines, an order for child support can be modified in order to meet the Guidelines. If the Guidelines were not used to determine a previous order of child support, the individuals must be able to show a substantial change of situation from that which was previously used to determine child support.
Child support can be reconsidered without a substantial change in situation if there is a reason to make such a change, such as a diagnosis of a major medical condition. The court will generally consider the same factors that initially determined child support as per the Child Support Guidelines. Remarriage and the introduction of additional children are generally not considered factors by the court as these actions are voluntary.
In order to have visitation modified, you must be able to prove a change in circumstances, and also that the modification would benefit the child(ren) involved.
Divorce orders are not set in stone, and the involved parties can make a complaint for modification when situations change. Just as in your original divorce proceedings, it is best not to go it alone.
Our experienced Massachusetts family law attorney, Damian Turco, understands the complexities behind the law and will work with you to present your case favorably before the court. Contact us today online or by phone at (978) 225-9030.