There are numerous issues that are decided by the Probate & Family
Court which at some point in the future will require modification. All
child-related issues are subject to modification. These issues include,
but are not limited to, child support, custody, health insurance, and
college education costs. Alimony may or may not be modifiable depending
on the circumstances of the case. The division of marital assets and liabilities
is non-modifiable absent fraud or an agreement of the parties to modify.
Subsequent to a judgment for divorce, the Probate and Family Court may
make such modification judgment as it considers expedient relative to
the care, custody, and maintenance of minor children, provided that the
Probate and Family Court finds that a material and substantial change
in circumstances of the parties has occurred and the judgment of modification
is necessary in the best interests of the children. The modification of
a divorce decree relating to custody is within the sound discretion of
the trial judge. A modification of a judgment for custody or maintenance
under G.L. c. 208, § 28 must be based on some change in the circumstances
of the parties since the preceding decree was entered. The existence of
an agreement incorporated into the judgment does not change the power
or the standard of review. An award of custody will not be sustained unless
all relevant factors in determining the best interests of the child have
been weighed. A parenting arrangement that has an adverse effect on the
child would constitute a change in circumstances. Even with the agreement
of both parties, the matter may not be brought before the court except
by way of a complaint for modification.
A modification of child support may enter notwithstanding an agreement
of the parents that has independent legal significance. It has long been
held in Massachusetts that parents cannot by agreement deny the Probate
Court its statutory powers under G.L. c. 208, §28, concerning support
for children, and cannot bargain away the rights of their children to
support from either one of them. A party seeking to modify a judgment
for child support must demonstrate a material change in circumstances
since the entry of the earlier judgment. In determining whether to modify
a support order, a probate judge must weight all relevant circumstances.
Alimony may or may not be modifiable depending on whether the alimony obligation
flowed from a divorce agreement entered into by the parties which retained
independent legal significance or whether it was ordered by the court
after a full trial on the merits. If the agreement retained independent
legal significance and did not therefore "merge" into the judgment,
the alimony provision is for all intents and purposes non-modifiable,
with the sole exception being the party seeking the imposition or extension
of the alimony demonstrating so-called "countervailing equities."
An agreement incorporated by reference and merged into a judgment ceases
to create an enforceable contractual obligation. The agreement is subsumed
into the judgment. The only remaining entity is the judgment, which is
subject to modification, like any other decree, upon the showing of a
substantial change in circumstances. A party seeking to modify a judgment
for alimony must demonstrate a material change in circumstances since
the entry of the earlier judgment. In determining whether to modify an
alimony order, a probate judge must weight all relevant circumstances.
Division of Marital Assets and/or Liabilities:
A division of marital assets on the other hand anticipates a final and
equitable distribution of the property owned by the parties at the time
of the divorce. If the prior proceeding results in a valid judgment that
provides for the division of the marital estate, that division, absent
fraud, is not subject to reopening in a subsequent proceeding. If the
parties agree, however, the division of marital assets may be done by
way of a joint petition filed with the court.
David M. Baker, Esq.-
your Massachusets and Rhode Island Divorce & Family Law Attorney!
schedule your case evaluation? Simply
call our firm today.