Under What Circumstances Can a Divorce Settlement Be Modified?

  • By:Karpenski & Schmelkin

Divorce settlement modificationGetting through the process of divorce can be difficult even when the parties remain amicable. Ideally, however, a divorce ends in the parties reaching a settlement agreement that resolves all issues in the divorce. What happens though if you want to modify something in that settlement agreement after the fact? Understanding what circumstances might allow you to modify your divorce settlement agreement in Massachusetts is a good place to start.

Final Orders in a Divorce

At the end of the divorce process, the court will incorporate the terms of your settlement agreement into a final order dissolving the marriage. Although that order is just that – a final order – it is not just possible, but common, to modify the terms of that order. Unless and until that final order is modified by the court, however, the parties are legally required to abide by the terms of the final court order, including the terms of the settlement agreement.

What Can Be Modified?

Although modifications after a divorce are common, there are aspects of a settlement agreement that cannot typically be modified. Anything relating to the division of marital property, for example, cannot be modified once the divorce is final absent a showing of fraud or other serious misconduct that occurred during the divorce process. Things that can be modified include things such as child support, terms of the Parenting Plan, and alimony.

When Can a Divorce Settlement Be Modified?

Like most jurisdictions, Massachusetts limits the circumstances under which a divorce settlement agreement may be modified. To successfully modify the agreement, you must show a “material change of circumstances that warrants the modification” for any modification other than child support. Massachusetts allows you to revisit the issue of child support every three years or earlier if there has been a material change of circumstances. If the modification involves minor children, such as a request to modify the terms of the Parenting Plan, the court is also required to determine if the modification is in the “best interest of the children.”

The court will ultimately determine what constitutes a “material change in circumstances” when asked to modify a settlement agreement; however, some common examples of circumstances that might qualify when seeking modification of alimony, child support, and/or the terms of a Parenting Plan include:

  • Increase in income
  • Decrease in income
  • Involuntary loss of employment
  • Change in custody or parenting time
  • Increase in expenses related to the children
  • Emancipation of a child or a child reaching the age of majority
  • Abuse or neglect of the children
  • Failure of a parent to provide basic needs for the children
  • Exposing the children to a harmful or dangerous adult (new boyfriend/girlfriend)
  • Excessive unexplained school absences
  • Child’s wishes if the child is older

Note that when a decrease in income is used to show a material change in circumstances, the court will look carefully at what caused that decrease in income. For example, if the party paying child support was laid off through no fault of his/her own, the court would likely take that into consideration when reviewing a request to modify child support. Conversely, if a party receiving alimony quits a job without a good reason, a judge would not likely consider that sufficient cause to approve a request for an increase in alimony.

How Is a Divorce Settlement Modified?

To request a modification of a divorce settlement agreement, you must file a Complaint for Modification with the appropriate court. The other party must be served with that Complaint and is entitled to oppose the request by filing an Answer with the court. If the modification involves minor children, MGL c. 208, § 28A authorizes the court to make “temporary orders relative to the care, custody and maintenance of such children.” Such temporary orders will remain in place until the court makes a final determination regarding the modification request.

If there are circumstances that you feel warrant a modification of your divorce settlement, contact an experienced attorney who can properly advise you of the options. The attorneys at Karpenski & Schmelkin have decades of combined experience handling  settlement modifications.  To set up a consultation, contact us at 508-231-5765.  We will thoroughly examine your case and discuss your options.



Posted in: Divorce