Skip to main content

What is the standard for amending child support orders?

The process for amending a family court order in Massachusetts begins with the filing of a Complaint for Modification.  If you are able to reach agreement on the amendment of a child support order, you can save time in court by filing an administrative action called a Joint Petition for Modification of Child Support.  Although this process may soon be available for other joint modifications, right now it is only allowed for child support, as we discussed in this previous post.

If you are unable to reach an agreement, then the court will decide if an amendment to your support order is appropriate.  The typical standard for amending a court order is  whether or not there has been a "significant material change in circumstances."   Up until recently, we often advised clients that 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.

However, a 2013 SJC decision in Massachusetts, Morales v. Morales, SJC 11104, differentiates this standard for modification of Child Support orders. In child support modification cases, the SJC has indicated that "modification is presumptively required whenever there is an inconsistency between the amount of child support that is to be paid under the existing support order and the amount that would be paid under the Guidelines."

Despite language that is different in the Massachusetts Child Support Guidelines, the Court indicated that the statutory language is controlling.  The Court explains a bit of the history behind how the Guidelines may have ended up with a differing standard, but absent some change in the statute, the Court indicates that the trial court must follow the "inconsistency standard" as contained in M. G. L. c. 208, § 28.

While this seems to imply that even a $5 change would require the court's attention, the cost of going to court should be a factor in determining a practical modification standard in each individual case.

In addition, it is also important to note that a Judge can deviate from the guidelines so long as they make a finding regarding the reason deviation is warranted.  Since Judges are given broad discretion with these findings by the appeals court, Judges may use this language to find ways around granting changes in cases that they believe are wasting their time.  In other words, common sense should still prevail.

To calculate what would be paid in a particular case under the current Guidelines visit our Child Support Calculator.


Comments

Popular posts from this blog

What is the purpose of the Divorce Nisi waiting period?

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

Does a Criminal Record affect Child Custody?

If one of the parents in a custody case has a criminal record, the types of crimes on their record could have an effect on their chances of obtaining custody. In custody cases the issue is always going to come down to whether or not the best interests of the child might be affected. In the most extreme case, in which one parent has been convicted of first degree murder of the other parent, the law specifically prohibits visitation with the children until they are of a suitable age to assent. Similarly, but to a less serious degree, in making custody and visitation determinations the court will consider crimes that would cause one to question the fitness of a parent. These types of crimes would obviously include any violent crime convictions which could call into question whether the children would be in danger around a parent who has shown themselves to resort to violence when faced with conflict. In addition, drug and alcohol abuse offenses would call into question a parent&#

What happens after my Divorce Agreement is approved by a Judge?

If you filed a Joint Petition for Divorce in Massachusetts then you will participate in an uncontested divorce hearing and the Judge will then issue Findings of Fact the day of the hearing.  A Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days. This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until 120 days after the divorce hearing date. If you filed a Complaint for Divorce  then your case will end either with a trial (if you don't settle) or an uncontested divorce hearing (if you settle).  If you reach an Agreement, then a Judgment of Divorce Nisi will issue and be effective as of the date of the uncontested divorce hearing, and it will become Absolute after a further ninety (90) days. This means that if you file a Complaint for Divorce you are not legally and officially divorced until 90 days after the divorce hearing date. Therefore, for 90 - 120 day