Property Divorce Modifications

 

For the most part, you cannot modify a judgment which divides marital property. Bush v. Bush, 402 Mass. 406 (1988); Maze v. Mihalovich, 7 Mass. App. Ct. 323 (1979); Davidson v. Davidson , 19 Mass. App. Ct. 364 (1985).

 

 

You may be able to modify a judgment that divided marital property when there has been fraud or a mistake, and, when you have a separation agreement, where you signed the agreement against your will. On rare occasions, the court may also decide that a matter that is closely associated with the division of property is actually an issue of support. For example, a court may find that the right to occupy the former marital home may be in the nature of support and not a division of marital property, even if modification affects the economic value of the former distribution. 27 Mass. App. Ct. 124 (1989).

 

 

 

The court may look at a number of factors to decidewhether a matter related to property division is in the nature of support, including the parties’ intent, which can be found by looking at language of agreement within surrounding circumstances, the parties’ financial circumstances at the time of the settlement, and the function served by the obligation. In re Gianakas, 917 F.2d 759 (3rd Cir. 1990) (bankruptcy discharge). Judges may find obligations that help pay for daily necessities, such as food, housing, or transportation, in the nature of support. In re Gianakas , 917 F.2d 759. 

 

 

Judges may also look to see:

 

• whether the payments are made in regular installments instead of in a lump sum;

 

• whether one former spouse has significantly less income than the other, or one former spouse needs job training, which would indicate a need for support;

 

• whether there are minor children involved; and

 

• whether one former spouse’s obligation would terminate upon the death of the other former spouse, or is otherwise modifiable upon a showing of changed circumstances. In re Swampson, 142 B.R. 957, 959–60 (D. Colo. 1992) (bankruptcy discharge).

 

 

 

 

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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