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Modify or Not?: Divorced Individuals Consider Modifications of Alimony and Child Support
 

March 1, 2014  

Written by: Dr. Lynne C. Halem

  

The advent of a new alimony law effective in the Commonwealth of Massachusetts on March l, 2012 was joined on August 1, 2013 with significantly revised child support guidelines.  These two major changes in the Massachusetts law have had a notable impact on divorced individuals in the Commonwealth, not least of which is reflected in an increase in the number of individuals filing for modification of existing Separation Agreements. Thus, the very real question arises, should a divorced individual consider filing for a modification of the support provisions of their agreement? And, if so, will he or she petition the court for a modification or will the parties, after reaching an agreement, file a joint petition? 

 

Let us consider alimony and child support modifications separately, albeit with acknowledgement that in some families, where alimony and child support have been negotiated as a package, modifications may involve both alimony and support orders.

 

Modification of Alimony Orders:

For couples who were divorced prior to the enactment of the Alimony Reform Act, there are various provisions available for modification of existing agreements:

 

The new Act includes specific durational periods for alimony, thereby limiting the years in which alimony shall be paid based on the years of the marriage.  For marriages of longer than 20 years, there is no durational limitation. 

As such, for orders which have term periods that extend beyond the time limitations specified in the new Act, provisions have been made available for filing for modification.  Here specific dates are delineated.  The longer the marriage, the later the date for approaching the court.  As such if you were married between five and ten years, you may file for a modification on or after March 1, 2014.  Whereas if you were married between ten and fifteen years, you cannot file for a modification until March 1, 2015.

 

Eligibility to file for a modification is not synonymous with an approval of a petition.  The court may determine that a deviation from the durational limitations of the Act is necessary and therefore deny your request.

b.   The act also provides for the termination of alimony upon the payor’s attainment of full social security retirement age, whether or not the individual has actually retired.  Alimony payors who will reach social security retirement on or before March l, 2015 are eligible to file a complaint for modification on or after March l, 2013.  However it is important to note that the Act is not, in and of itself, retroactive and therefore age alone is not the only determining factor in approval of a petition for relief.  The alimony payor must also demonstrate a material change in circumstances which calls for a termination of, or reduction in, alimony.  Thus, whereas exceeding the durational periods of the Act does constitute a material change in circumstance, the same is not true for reaching full social security retirement age.

 

c.   Cohabitation of the recipient spouse of three continuous months or more also constitutes a possible change in circumstances which may be used to modify existing alimony orders, as do also the long standing material changes such as loss of employment, poor health and other catastrophic happenings that affect the alimony payor’s ability to continue to uphold his or her support obligations.

  

Modification of Child Support Orders:

The August 1, 2013 Child Support Guidelines introduced a new ground for modification of all existing child support orders which has no relationship to a change in circumstances or to the amount of time since the passage of the order.  Here the guidelines state that modifications shall be warranted by an inconsistency in support under “the existing order and the amount that would result from the application” of the now current guidelines.  Therefore if the amount of support would be more or less under the 2013 guidelines than that of your actual order, a petition for modification may be made.  Naturally the court may still not approve the petition if the court believes that a deviation from the guidelines is warranted.

In addition the new guidelines, as the former ones, provide for change due to material and substantial change in circumstances.

 

Regardless of the provisions in the alimony and child support law for modification of existing orders, divorced couples need to consider the impact of a modification on all affected family members.  Mediation provides a neutral forum for divorced couples to work together to analyze their existing orders in light of either party’s request for change.  A rational and thoughtful approach to effecting change helps couples to avoid the unpredictability of court rulings and the stress and cost of litigation.

 

 



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