Modification Actions

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.

Custody:

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.

Child Support:

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:

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.

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