Modifying a Court Order – Divorce Modification
Sometimes your circumstances drastically change in the years after a divorce. In Massachusetts orders and judgments of the Probate and Family Court may be modified. When the initial order or judgment is entered by the Court they are limited to the facts present at the time and while they will attempt to issue an order or judgment that has a lasting effect, it is impossible to anticipate every possible change that can occur. The following types are modifications are typically sought in the Probate and Family Court:
- Child support modifications;
- Child custody modifications;
- Visitation modifications; and
- Spousal support modifications.
In all modification proceedings the best interest of the child as well as a material change in circumstances of the parties since the entry of the prior order or judgment must be proved to warrant a modification. Circumstances potentially justifying a change in child custody or visitation include the following:
- The parent has become unfit;
- The parties’ are unable to agree on child rearing decisions;
- The custodial parent has lost their job or become ill;
- The child has been removed from the state;
- The custodial or non-custodial parent has moved out of state;
- The Children are older and have expressed a preference to change their residence; and
- Any other change that affects the child’s well being.
Financial circumstances potentially justifying a reduction or termination in the amount of child or spousal support including the following:
- The emancipation of a child living with the recipient;
- A decrease in the recipient’s needs;
- A reduction in the payor’s income (a payor’s reduced income will not justify modification if they have made a voluntary choice of employment at a reduced level.);
- The remarriage of either party;
- Death of the payor;
- The cohabitation of the recipient with another; and
- Retirement of the payor.
Financial circumstances potentially justifying an increase in the amount of child or spousal support including the following:
- The payor’s increased income, earnings or assets;
- A decrease in the payor’s needs;
- A decrease in the recipient’s income;
- Unanticipated increase in educations cost of the child(ren); and
- An increase in the recipient’s needs.
When seeking a modification a Complaint for Modification should be filed with the Probate and Family Court for the county that issued the original judgment or order. The complaint must also be served upon the defendant. Once filed with the Court they will decide whether the change in circumstance present warrants a modification on the existing order or judgment. It is the Plaintiff’s burden to plead and prove a material change in circumstances has occurred. When ruling on a modification of support, custody or visitation the Court seeks to make sure the children’s rights and best interests are protected.
Modification can also be achieved by agreement of the parties, either before or after the complaint is filed. A modification agreement can be entered with the Court. If significant changes in your situation occur, you may need to modify your divorce agreement. There are all types of modifications and adjustments that might be necessary to a divorce settlement if changes occur. You can modify:
No matter what your post-divorce concern or issue is, our Salem family law attorneys can assist you. We understand the frustration, emotional trauma and aggravation that can occur when your rights are infringed upon by your spouse not honoring his or her agreement. We can assist you.
If you need help with issues after your divorce, we can help you. Contact us today to discuss your modification or enforcement issue in Massachusetts.
