Divorce agreements sometimes need to be modified because something changes in either or both parties’ lives. Massachusetts has the concepts of “merger” and “survival” of the terms of a divorce agreement, which affect what can be modified in the future and what cannot. Those portions of a divorce agreement which “merge,” can be modified either by mutual agreement or court order. Those portions of a divorce agreement which “survive,” can only be modified by agreement. It is important to review the divorce judgment before considering modification, to know what “survives” and what “merges,” as that may influence not only what is modifiable but how.
Modifications are common as life happens and as things change over time. Some common examples of reasons for divorce modifications include:
- The parenting plan you created when your child was three may not work or be in their best interest when they are 15
- A child is heading to college, and college expenses need to be addressed
- A child has emancipated, triggering a review of child support and/or alimony
- Remarriage and blended families require a closer look at relationships and co-parenting
- There may be a job change, or an illness or disability, or a move, which affects support, life and/or health insurance
- An alimony payor may be retiring or have changed circumstances, or an alimony recipient is cohabitating or no longer has a need for support, suggesting a review of or termination of alimony.
Consult a Family Lawyer
Many clients, after the time and expense of divorce, want to be thoughtful about modifications and how best to approach life’s changes. A modification generally requires a material change of circumstances. Consulting with a family law attorney to understand whether changed circumstances, for you or the other party, rise to the level of being material under the law is critical before jumping into pursuing a modification. If a modification is worth pursuing, there are numerous avenues for addressing modification with your former spouse or partner.
If the parties can agree on what modifications are to be made, they can file a joint petition for modification and request that it be allowed administratively, avoiding the necessity for a court appearance. While the Court has the right to request an appearance even with a joint petition for modification, usually such petitions are in fact allowed administratively upon request as long as the proper paperwork is prepared and filed with the Court.
If parties are not in agreement regarding modification, a complaint for modification can be filed with the Court, but the parties should first look at their divorce agreement before doing so. Many divorce agreements contain dispute resolution clauses that require parties to mediate or pursue some other out-of-court dispute resolution process before filing with the Court.
Mediation: An Option for Divorce Modifications
Even if a divorce agreement does not contain a dispute resolution provision, when seeking a modification of their divorce agreement, parties should consider mediation or other out-of-court dispute resolution process.
Why? Modifications are often more limited in scope than divorce, and the parties may be in a different place than they were at the time of divorce and may be more willing to negotiate. Commonly, most parties prefer not to repeat the emotional and financial cost of divorce and are seeking a more streamlined and efficient process to resolve their differences.
As life happens, and you want to consider a modification of your divorce agreement, consider mediation or another dispute resolution process such as Collaborative Law, settlement counsel, or even arbitration to settle your differences. The result is likely to be more peaceful and less expensive, and conclude with a mutually beneficial settlement.
To discuss your family law matter including divorce modifications or to learn more about mediation, Collaborative Law or settlement counsel, please contact us.