How Modifying Your Divorce Agreement or Court Order Can Help

First off, understand that I would NEVER advocate nor represent a client who was looking to shirk his or her parental responsibility.  So when I talk about modifying your divorce agreement court ordered support, I am not suggesting that this is an avenue to save a few bucks because you hate paying support to your former spouse.  However, individuals are facing hard realities and significant economic setbacks.  A modified support order can help you survive and prevent arrears.  Additionally, as I just mentioned, this is an issue of responsibility.  That weekly obligation will never go away.

Unfortunately parents who are paying support do not realize that they can modify their divorce agreement or court order for child support or alimony if there has been a material change in circumstances.  And while I cannot speak for every judge in Massachusetts, as an attorney I would say that there is a fairly strong argument to be made that losing one’s job might constitute a material change in circumstances.  What makes the situation unfortunate is that because parent isn’t aware of the possibility of modification or thinks that somehow by modifying the divorce agreement or child support that he or she loves or supports the children less, that parent tries — and more often than not fails — to keep paying the support figure based on full employment rather than unemployment or underemployment.  And when the parent fails that is when the damage begins as he or she falls into arrears which means not only does one start to look like a “deadbeat” but the hole gets even worse as the Department of Revenue starts tacking on penalties and fees.

Do yourself and your children a favor: if you find yourself unemployed or underemployed, seek the advice of an attorney.  No one benefits from you falling behind in your parents.  Save the aggravation and expense of repeated complaints for contempt by being proactive and seeking a modification.

So what exactly is the option for an individual living in the above facts?  Well the same basic answer is that you need to pursue a Complaint for Modification.  The standard for obtaining a modification is defined by Massachusetts General Laws ch. 208 §28, which states:

[M]odifying its earlier judgment as to the care, custody and maintenance of the minor children of the parties provided that the court finds that a material and substantial change of circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children.

Be aware that the above quoted statute is specific to divorce but the standard applies to modifications in a variety of settings; the moving party will need to demonstrate “a material and substantial change in circumstances.”  This means that simply because you do not like a specific condition or rule that you can go into court and change the judgment.  While the standard is not prohibitively hard to meet it also ensures that parties try and work things out before rushing into court.

Modifications are important tools when used properly and effectively.  One recommendation I have for clients when pursuing a modification is efficiency.  The court doesn’t want to see you every few months so when you are seeking a modification, or determining whether a modification is appropriate, don’t just focus on the one issue that is nagging you most.  Step back and look at the whole situation as objectively as possible.  I don’t think it makes sense to pay an attorney to go to court five times when all the issues can be addressed at one time.