last post we explored reasons that there may be some inequities post-divorce that cannot be remedied. Many decisions in a divorce agreement, such as property division, survive the Judgment and cannot be changed.
However, there are two types of court orders which always merge into the Judgment, meaning they can be modified if there is a material and significant change in circumstances: child custody and child support.
The Court retains jurisdiction over provisions relating to child custody and visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. Although typically paid to the custodial parent, child support is also for the benefit of the child, not the parent. Therefore, you cannot give away your child's right to seek greater child support if there is a material and significant change in circumstances.
In order to modify child support you must file a Complaint for Modification or a Joint Petition for Modification. If you are able to agree to a change with your ex (either directly, through mediation, or through collaborative negotiation) then you can file a Joint Petition for Modification of Child Support. If you can’t agree, then you must file a Complaint for Modification which tells the court what has changed.
To succeed on a Complaint for Modification you must prove two things: first you must prove that there has been a "significant material change in circumstances;" and second you must prove that the change in circumstances warrants a change in the Order.
A "significant material change in circumstances" is simply explained as a change in your life that is big enough to have an effect on the factors that related to the original Order of the Court. For example, if the Order that you want to change is a Child Support Order, then you must demonstrate that there has been a change to the factors that affect a Child Support determination, such as the income of the parties, expenses of the parties or needs of the children. In addition, you must demonstrate that that change is significant. In Child Support cases a good rule of thumb for determining significance is whether or not the change in circumstances would result in a 20% change in the Child Support Order.
Click here to calculate your Child Support in Massachusetts.
Click here to learn more about filing a Complaint for Modification.
Though theoretically support and custody should be considered separately, what are your thoughts about the effect on custody when the non-custodial parent's income drops to below poverty level (e.g., the proverbial "welfare mom") and s/he must seek support from the parent with primary physical custody. In a high income case, this analysis may be easier because the extreme difference in income would make it easier for a Court to order the higher-income custodial parent to pay child support to the non-custodial parent. But what are your thoughts about this issue when the parent with primary custody had just an average income? Furthermore, do you think that a non-custodial parent requesting child support from a custodial parent who has only an average income risks losing custody time if s/he requests a modification?
I always appreciate your insights,
When the parent with primary custody has just an average income, it is possible that the non-custodial parent will be entitled to spousal support (if the other factors of the marriage support that finding). Under Massachusetts law (and I can't speak knowledgeably to other jurisdictions), the non-custodial parent never receives child support, but might be entitled to spousal support. Even under the new alimony law (The Alimony Reform Act of 2011) which takes effect on March, 1, 2011, I think this issue is ambiguous and Judges will still have discretion to order alimony in these cases.ReplyDelete
Regarding how support decisions might affect custody, I have found Judges in Massachusetts to be able to separate these issues effectively.