posted by Eric Schutzbank
While lawyers like to plan for all contingencies, the reality is that life is extremely fluid and we cannot predict all of the possibilities. A parenting plan that works when the children are ages three (3) and five (5) may not work very well when the children are seven (7) and nine (9). When a Separation Agreement is drafted or a Judge issues a ruling after a divorce trial. The decision is based on what is equitable and/or in the best interests of the parties and/or children at the time of the divorce. Certain matters, such as property division, are final and are never modified. The reason that property division is not modified, absent a fraud upon the court, is that both parties to a divorce need to fully be cognizant of their assets and liabilities so that they can best move forward with their lives. If it was possible to change how the property was divided, it would be impossible to move forward or plan for the future. Issues such as custody, parenting plans or child support are modifiable in order to ensure that the best interests of the children are always being met. In addition, the Courts recognize that the income of child support Payors or Recipients can change.
What Can Be Modified?
Whether or not a portion of your Agreement or the Decree can be modified depends on whether that issue merged with the Judgment or Survived as an Independent Contract. In layman’s terms, merger basically means it is modifiable and survived basically means it is not modifiable. Property division always survives. Child custody, child support and parenting plans are always merged and always modifiable. Alimony is a hybrid as it can either survive or merge.
Legal Standard for Modification
The legal standard is a phrase meaning the level of proof required for the Court to rule in your favor. To modify custody or parenting plans, you must have a material change of circumstances to go to court regarding a modification and what you are requesting be ordered/modified must also be found to be in the best interests of the children. This material change of circumstances can equal a major geographical move, a job change that affects the current custody arrangement, the desires or needs of the children changing, a parent becoming addicted to drugs or alcohol or anything else that may make the current arrangement not in the best interest of the children. Talk to a qualified attorney first to determine if your circumstances warrant a modification to avoid unnecessary time in court.
Until recently, child support could be reviewed every three years regardless of whether a material change in circumstances had taken place. The only issue after three (3) years was whether or not the child support being paid was consistent with the amount due under the guidelines. In 2013, the Supreme Judicial Court held in Morales v. Morales, 464 Mass. 507 (2013) that this so called “inconsistency standard” should be applied to all existing Orders/Judgments irrespective of whether or not three years had passed. In addition, effective August 1, 2013, new child support guidelines are taking effect and may reduce the amount of most existing orders.
Filing for a Modification
Before going to Court, you should consult with an attorney to explore your options. In addition to litigation, there are alternative dispute resolution solutions such as mediation or collaborative law that may be of assistance in preventing a protected and expensive litigation. Talking to an attorney is the best way to file for a modification or determine if an agreement can be reached in advance or with the assistance of a mediator. If litigation is required, an attorney will explain the process and provide analysis of your particular situation so you can decide if the relief you’re seeking is feasible. Before taking steps that can negatively impact your ability to co-parent your children, t is important to talk to an experienced family law attorney to discuss your situation and determine your options.
Modification of Paternity/Custody/Visitation/Support Actions
Divorce is not the only time that child support, child custody or parenting plans are ordered by the Court. Parents who have children but are not married also have such issues to contend with. The same rules regarding child support, custody and parenting time apply to children born to unmarried parents as apply to children of divorcing or divorced parents.
If you want more information about whether or not a modification is possible in your particular circumstances, please call my office to arrange for a consultation.
