Skip to main content

Post-Divorce Problems: Should my Child Support Change?

Image
By

In our 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.


Labels:

Comments

  1. Nilmini KlurFebruary 2, 2012 at 5:51 PM

    Justin -

    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,
    - Nilmini

    ReplyDelete
  2. Kelsey & Trask, P.C.February 2, 2012 at 9:22 PM

    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.

    Regarding how support decisions might affect custody, I have found Judges in Massachusetts to be able to separate these issues effectively.

    ReplyDelete

Post a Comment

Popular posts from this blog

What is the purpose of the Divorce Nisi waiting period?

By
In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be...
76 comments
Read more

New Massachusetts Child Support Guidelines (2021): Big Changes, Little Changes, Typos & some Unexpected Results

By
UPDATE: The court has released a web calculating version of the 2021 MA Child Support Guidelines Worksheet .  It resolves some of the typos referred to below, but the unexpected calculations still apply. Every four years, per federal mandate, the Massachusetts Probate & Family Court revisits the Child Support Guidelines through the work of a Task Force appointed by the Chief Justice.  The 2021 Massachusetts Child Support Guidelines were recently posted.  They take effect on October 4, 2021.    If you are interested in a training on all of these changes to the new Child Support Guidelines: DMTA Presents the 2021 MA Child Support Guidelines Update  – Attend this event to learn the key updates you need to know for your mediation clients. Presented by Justin Kelsey of  Divorce Mediation Training Associates  and  Skylark Law & Mediation, PC . For a full comparison of all the  tracked changes between the 2018 and 2021 Massachusetts Ch...
Post a Comment
Read more

Online Tool for Creating Parenting Plans

By
It is our hope that all families find a way to resolve conflict peacefully.  This is especially true when children are involved.  Divorced or separated parenting has many complications and the first is just deciding how to share time with a child from two separate households.  Developing a schedule can result in a lot of tension, especially if parents have trouble picturing how this new schedule will interact with their work schedules and the schedules of their children. To help make this easier, we've created an online tool for creating parenting plans that is simple and easy to use: We encourage parents, regardless of the process they are using to divorce, to use this form to assist in evaluating and settling custody disputes. The form allows you to choose between the Model Parenting Plan proposals or customize your parenting plan over a four week period by clicking directly on the form.  When you click on a section of the calendar it switches between ...
Post a Comment
Read more