Post Divorce modifications

 

If an earlier court order or judgment no longer suits the parties because circumstances have changed in a significant way since the order or judgment was issued, the court can “modify” the prior order or judgment. Cases where a modification might be appropriate include those where the children are significantly older than at the time when the last child support order was issued, or where a person ordered to pay alimony has retired and now has a substantially smaller income than at the time he or she was ordered to pay alimony.

 

 

In order to change a prior judgment, a party must file a complaint for modification. In order to change a temporary order, a party must file a motion. A judgment can be modified more than once. In general, the courts can make changes in any of the following areas:

 


 

alimony or other forms of spousal support;

 

 

the custody of children;

 

 

• the visitation arrangements with children;

 


 

• the amount of child support received or paid and other matters affecting the care and well-being of minor children, such as

 

     – dental or medical insurance;

 

     – who can claim a child as a dependent for income tax purposes;

 

     – college expenses; or

 

     - any other provision, but usually not the division of property.

 

 

 

In some situations, a matter related to a division of property may be in the nature of support and is therefore modifiable. See Hartog v. Hartog , 27 Mass. App. Ct. 124 (1989) (wife’s stay in home with children was in the nature of support, and therefore subject to modification upon proper showing of change). The court may consider the division of debt to be in the nature of a division of property or in the nature of support. A judgment can be modified more than once.

 

 

Types of Modification Orders by Motion - Pursuant Modifications made to Mass. R. Dom. Rel. P. 60

 

 

Sometimes a party may want to change an order or judgment because there is a legitimate need to do so, and it would be unfair not to allow a change. For example, when there is a typographical mistake in the written judgment, or when the opposing party lied about the value of a significant asset on his or her financial statement, and the lie influenced the judgment of the court. If there is a “clerical mistake” in your judgment or order that arose from an “oversight” or an “omission,” the court may correct it on its own, or on the motion of any party. Mass. R. Dom. Rel. P. 60(a). This rule “seeks to ensure that the record of judgment reflects what actually took place,” and to correct mistakes created by some oversight or omission of the court, a clerk, or a party. It does not apply to mistakes resulting from deliberate action, such as lying about the value of a significant asset. This rule relates to all written records in the case. When the judgment is being appealed, mistakes may be corrected before the appeal is docketed (initiated in the Appeals Court). The mistake can be corrected with the consent of the appellate court after the appeal is docketed. - Mass. R. Dom. Rel. P. 60(a).

 

 

A judge may “relieve” a party from a final judgment or order to accomplish justice for the following reasons:

 

 

• mistake, inadvertence, surprise, or excusable neglect;

 

 

• newly discovered evidence which reasonably could not have been discovered within ten days after the judgment is entered (i.e., in time to move for a new trial under Mass. R. Dom. Rel. P. 59(b));

 

 

• fraud, misrepresentation, or other misconduct of an opposing party;

 

 

• the judgment is void (meaning the judgment is not valid, has no legal effect);

 

 

• the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer fair that the judgment should have prospective application.

 

 

Filing a motion under Rule 60 does not affect the finality of a judgment or suspend its operation (i.e., it does not affect the time for appeal). The motion for substantive (as opposed to clerical) relief must be made within a reasonable time. Motions for relief based on any of the first three reasons listed above (those relating to mistake, misconduct, and newly discovered evidence) must be made within one year after the judgment or order enters.



 

When there is no provision for alimony or property division in the separation agreement or divorce judgement



If the court did not consider an issue during the divorce hearing, including issues involving the division of marital property and alimony, the parties do not need to show that there has been a material change of circumstances since the divorce was granted. G.L. c. 208, § 34. If the parties do not have an agreement dividing marital property (or a document that could be interpreted as dividing property), if the issue was not presented during the divorce hearing, and if the judge’s order does not make a ruling on property division, either the husband or the wife can file a complaint for division of property. G.L. c. 208, § 34; Maze v. Mihalovich, 7 Mass. App. Ct. 323 (1979).

 

 

Similarly, if the parties do not have an agreement about alimony, or a document that states its intent to settle all of the issues between the parties, one may be able to file a complaint for alimony. You do not need to show a change of circumstances since the time of the divorce judgment to obtain a favorable ruling. You must show that you meet the criteria for support using the same standards that would have been used in the divorce proceeding.

 

If the separation agreement expressly states that there is a right to bring future claims for alimony, the party bringing the claim must show a change in circumstances since the divorce was granted. Buckley v. Buckley, 42 Mass. App. Ct. 716 (1997). Again, if you file either a complaint for alimony or a complaint for division of property, you do not need to show that there has been a change of circumstances since the time of the divorce judgment. G.L. c. 208, §§ 34, 37; Maze v.Mihalovich, 7 Mass. App. Ct. 323 (1979). The factors the court considers in dividing marital property as well as in awarding alimony in these actions are the same factors the court would consider if the claim arose in the original divorce action.

 


 

Joint Petitions (Following Approval of Agreement, But Before Entry of Judgment)

 

 

If the parties filed a joint petition for divorce under G.L. c. 208, § 1A, and the judge approved the agreement, they can change the agreement by filing a joint motion requesting that the court approve the modifications if they do so before the judgment divorce nisi is entered. This generally occurs thirty days after the hearing in front of the judge on the joint petition for divorce. If the thirty days have expired, the parties, if in agreement, may withdraw their joint petition for divorce by filing a motion before the judgment of divorce becomes final, which occurs ninety days after the judgment of divorce nisi is entered.

 

 

If there is no agreement between the parties to modify a separation agreement that has been approved by the court, a motion can still be presented to the court before the entry of the judgment divorce nisi, which occurs thirty days after the court hearing on the petition. The person who wants to change the agreement must be able to show that there has been a significant change of circumstances. The court may modify the agreement. The agreement as modified will continue as the order of the court. G.L. c. 208, § 1A.

 

 No Final Judgment—Changing Temporary Orders



 A complaint for modification can be filed at any time after your earlier case has ended in a final judgment; if your case is still pending, and you want to change the temporary order, then you need to file a “motion.” You can ask the court to change the temporary orders by filing a written motion with the court and giving notice to the other party or his or her attorney.  The standard to change a temporary order is a change in circumstances since the original temporary order; the change generally does not need to be as significant as it needs to be to change a final order, but must be reasonable.

 

 

Appeal

 

 

If the Probate and Family Court refuses to change your order, you may be able to appeal the decision. An appeal is a resort to a higher court for the purpose of obtaining a review of the trial court’s decision. 

 

 

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Contact an Expert Divorce Attorney

 

 

At the Law Offices of Michael R. St. Louis, we are fully prepared to handle your divorce case. As a leading Boston divorce law firm, we can provide you with the direction and legal counsel you need in your divorce. Call our Law Offices today for your free consultation at 781-816-3950 or contact us online.

 

 

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