Divorce agreements cover many details, including child custody, child support, property division, health insurance and many other specifics based on the details of a family’s life. The difficulty is that at the time a divorce agreement is ruled upon and issued, it’s impossible to foresee all future circumstances. Therefore, it’s often necessary to return to court to modify the terms of your existing Divorce Judgment. Massachusetts’ law allows for changes to be made to certain provisions as long as the legal standards are met.
Merging Vs. Surviving Provisions
Divorce provisions are classified as either “merging” or “surviving.” These are legal terms that should be included in your Separation Agreement. “Merging” means that the provisions of your Judgment can be modified at a later date if circumstances warrant the change and the burden of proof is met. Examples of provisions in your Judgment that may merge include child custody, child support, college education payments, health insurance benefits, and alimony. “Surviving” means that the provisions of your Separation Agreement cannot be modified in the future except in limited circumstances. Examples of surviving provisions often include the division of assets and sometimes alimony.
The first step to determining whether or not your Divorce Judgment can be modified is to determine whether or not the provisions have merged or survived. If the provision you want to modify has merged, then you must then determine whether or not you have met the legal standard warranting a change. Consulting knowledgeable counsel at this juncture is recommended.
Reasons to Modify
There are various reasons to modify your existing Divorce Judgment, including without limitation a change to either spouses’ income, a change in the cost or availability of health insurance benefits, the remarriage or cohabitation by an alimony recipient, the retirement of an alimony payor, the emancipation of a child, a child’s attendance at college, or a change to your children’s needs. Whatever the reason, it is important to consult an experienced attorney to learn whether the changes in your life warrant an adjustment to your Divorce Judgment.
There are different legal standards imposed on modifications depending on what aspect of your Divorce Judgment you seek to change. The law applies a different standard if you want to adjust child support, alimony, custody/parenting time, college expenses, and health insurance. For example, if you want to modify custody or parenting time arrangements, then you must demonstrate that there has been a material change in circumstances and that the modification you seek is in the child’s best interests. On the other hand, if you desire to adjust child support whether upwards or downwards, then you must show that the existing child support order is inconsistent with the order that would result by applying the current Child Support Guidelines. There are various exceptions and specific details that are involved in each modification case. Furthermore, each family is different and divorce agreements are unique. It’s best to speak with an experienced Massachusetts family law attorney to understand what aspects of your agreement can be modified.