Families are always changing. When two people divorce, those two individuals don’t remain the same in all aspects after they divorce. People lose jobs, incomes increase and decrease, children grow older, parents have to relocate, children go to college – families change. So shouldn’t your divorce judgment change as well?
That’s the purpose of a modification action: where one party seeks to change the terms of a judgment of divorce. Just like a divorce action, modifications can be resolved by agreement, or, if no agreement can be reached, by a trial.
That being said, just because one party wants a modification doesn’t make it so. We at HJL have represented both clients seeking a modification and clients who want to prevent a modification. Just like a divorce action, we assess the strengths and weaknesses in any modification action keeping your interests and goals as our primary guidance.
MODIFICATIONS – THE INITIAL ASSESSMENT
When assessing a modification case, there are a few major issues to consider:
Issue #1 – Can the term be modified?
What sort of terms can be modified? That primarily depends on how the judgment of divorce and/or separation agreement was drafted and the terms the party is seeking to modify.
- For the most part terms set forth in a judgment of divorce relating to children – such as child support, legal custody, parenting time, educational expenses, and extracurricular activity expenses – can potentially be modified. These are called merging
- For the most part, terms set forth in a judgment of divorce relating to property division and liabilities usually cannot be modified. These are called surviving
- Depending on the language used with regard to alimony obligations, those terms might be subject to a modification.
As part of our engagement, we review all aspects of a potential modification action on a case by case basis and advise our clients as to their rights and exposure as to whether a modification is even possible.
Issue #2 – Has there been a material and substantial change in circumstances?
Again, just because one party wants a modification does not make it so. But let’s say a party wants to modify a merging term – a term which can be modified. That party needs to demonstrate that there has been a “material and substantial change in circumstances” relating to that term. We call this “meeting the legal standard.”
What kind of changes in circumstances give rise to a modification? Again, we assess modifications on a case-by-case basis. As examples, we have seen the following factual circumstances give rise to a modification:
- A party loses their job and needs to decrease their support obligation until they find a new job
- A parent wants to relocate to another state and wants to take the minor child with them (called a removal) or wants to modify the parenting plan
- A child is older than they were at the time of the divorce and wants to spend more or less time with one parent and that parent wants to modify the parenting plan
- A child gets accepted to college and the college costs need to allocated between the parents
These are just some examples, but there are very few, if any, “automatic” modifications. When you meet with an HJL attorney, we will review the issues in your case from a “top to bottom” approach so that you know the strengths and weaknesses in your case, whether you’re seeking to modify or seeking to prevent a modification.
Issue #3 – Is the change in circumstances related to the requested relief?
So let’s say that there has been a material and substantial change in circumstances since the time of the divorce. That must mean that the party seeking the modification will automatically get what they want, right? Well, not exactly.
In order to get the outcome they’re looking for (we call this “relief”) that party must show that the change in circumstances is related to their requested relief. As an example, if a child support payor loses their job and wants to decrease their child support obligation until they get a new job, that could potentially occur, because those issues are related. But let’s say that a child support payor loses their job and they file a modification seeking an extra week of summer vacation time with the children. Those issues are not directly related and that modification might not be granted.
Issue #4 – Is the requested relief appropriate?
Even if the party seeking a modification demonstrates that the term can be modified, and that there has been a “material and substantial change in circumstances” and that their requested relief is related to that change, their requested relief needs to be appropriate.
Who determines whether that relief is appropriate? Well, the parties can agree on a settlement (see below), but if they can’t, the court will ultimately decide whether and to what extent the requested relief is appropriate.
Going back to that example of the child support payor who loses their job, it might be entirely appropriate for the judge to temporarily decrease child support until the payor gets a new job. But that doesn’t mean that child support will be eliminated forever.
WHAT DOES THIS PROCESS LOOK LIKE?
Just like a divorce action, modifications can be contested or uncontested. Just like divorces, if the parties are in full agreement, they can file all the necessary paperwork with the court and get a modification relatively easily. But if the parties can’t reach an agreement, then they have to litigate the case.
WHAT ARE THE STEPS IN THIS PROCESS?
Just like divorce actions, there are many ways in which a modification can unfold. But because we’re simplifying, let’s talk about modifications in two large categories: uncontested modifications and contested modifications.
Uncontested Modifications – in broad strokes
- The parties communicate on the issues, maybe with attorneys present, maybe with a mediator, maybe by themselves.
- The parties exchange financial information (if applicable) so that they are aware of all the relevant financial circumstances of the other party.
- The parties complete the court-ordered financial statements (again, if applicable).
- If the parties agree that a modification is appropriate, they need to discuss what relief is appropriate. For example, if they agree that child support should increase, they need to determine what the new child support amount should be.
- When the parties reach a full agreement on the applicable issues, they reduce that agreement in writing to a comprehensive agreement and they complete the necessary court documentation.
- In many cases, the parties if the parties complete the documentation required by the court (under Supplemental Probate and Family Court Rule 412), they can submit the documents and the court can grant a modification administratively – meaning without appearing in court.
- Sometimes, however, the court may want the parties to appear at a hearing to finalize the modification.
- If all goes as planned, the court issues a judgment of modification.
Contested Modifications – in broad strokes
- One party (the plaintiff) files a complaint for modification and serves it on the other party (the defendant).
- The defendant files an answer to the complaint for modification.
- The parties might file and appear before the court on motions, such as a motion for temporary orders. Keep in mind that the court might not be able to allow certain motions in a modification action.
- The parties can engage in discovery such as requests for documents, interrogatories (written questions), or depositions.
- The parties then appear before the court at a hearing called the Pre-Trial Conference. This is a very important hearing where the court typically will give feedback on the overall modification. A Pre-Trial usually happens at least 6 months after the complaint for modification is filed.
- If the parties cannot resolve the case after the Pre-Trial Conference, the court then may schedule the matter for a trial. A trial usually doesn’t occur until 9 months to a year after the complaint for modification.
- After the trial, the court will usually take the case “under advisement” and then issue a judgment with findings and a rationale. This usually takes a few months after the trial is concluded.
- Remember, if the parties reach an agreement at any time during this process, they can bring the case to a settlement.
Again, these are the “broad strokes” of a modification process. There are any number of “variations on the theme” when you deal with modifications. It’s also important to note that the Massachusetts Probate and Family Court is a court of equity. What does that mean? That means the Probate and Family Court has a lot of discretion on the types of orders it can issue and the relief it can grant.
WHAT IF I DON’T AGREE TO A MODIFICATION?
We’ve represented parties who want a modification (the plaintiff) and parties who dispute that a modification should occur (the defendant). A modification is not appropriate in every circumstance and sometimes continued attempts to modify a judgment is just straight-up harassment. As family law attorneys there are proactive steps we can take to stop a modification action before it ever gets started. If litigation is unavoidable, then we will work with you to come up with the best strategy to be employed at all phases of litigation in order to obtain the best outcome possible.
DO I NEED AN ATTORNEY?
The short answer here is that you don’t need an attorney in a modification action – or really any legal action for that matter. You also don’t need an electrician when re-wiring your lighting system in your house. But it’s a really good idea. The same can be said for hiring an attorney for a family law action. Chances are that you are not a family attorney and you don’t spend a lot of time before Probate and Family Law judge and you don’t devote a lot of time to staying on top of cutting age family law issues. So hire someone that does do all those things. You don’t want to do this alone.