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Can I Modify My Separation Agreement?

It is not uncommon for a spouse to want to modify certain provisions of his or her Separation Agreement after a divorce.  As time goes on, circumstances will most certainly change for the former spouses.  However it is important that spouses make any changes through the Probate and Family Court, and not through a private agreement, as private agreements are not enforceable through the courts.   Before a spouse can seek a modification in the court, he/she must first ascertain if the provision he/she wants modified can be modified.  In Massachusetts, Separation Agreements either “merge” or survive”.  When a separation agreement “merges” it means that all provisions in the agreement may be modified through a Complaint for Modification, upon a showing of a material change in circumstances.  When a separation agreement “survives” it means it has its own independent legal significance, and can only be modified in the rarest of circumstances.  The courts have stated that there must be “countervailing equities” to modify a surviving agreement.  Although the term “countervailing equities” has not exactly been defined by the court, it has generally meant the most extraordinary circumstance will permit a modification, such as a person becoming a ward of the state absent a modification.   Also, certain parts of a separation agreement can merge, and other parts can survive.  Almost always, provisions regarding division of marital property and marital debt, survive, so those provisions can only be modified in the rarest of circumstances.  Provisions regarding children, such as custody, the parenting plan, child support, and payment of college costs, almost always merge, and can be modified.  Other provisions, such as life insurance and alimony, can survive or merge, depending on a case-by-case basis.   Thus, if a provision of a separation agreement has merged, and a spouse would like to modify this provision, then upon a showing of a material change in circumstances, the spouse may obtain a modification.   A modification may be obtained in two ways.  One, if the other spouse does not agree to the modification, then the spouse must file a Complaint for Modification and proceed with a contested modification action.  However, if both spouses agree to a modification, they may jointly file a Joint Petition for Modification pursuant to Supplemental Probate and Family Court Rule 412.  The Joint Petition method is faster and more cost effective, as there typically is no hearing in court on the Joint Petition; rather the court handles the Joint Petition administratively.   Modification actions are certainly not uncommon.  However, spouses should always make sure any modification is adopted by the Probate and Family Court, so the modification is official, and may be enforced, should one spouse not live up to the terms of the modification.     Read the full article

[amarallaw]

Can I Modify My Separation Agreement?

It is not uncommon for a spouse to want to modify certain provisions of his or her Separation Agreement after a divorce.  As time goes on, circumstances will most certainly change for the former spouses.  However it is important that spouses make any changes through the Probate and Family Court, and not through a private agreement, as private agreements are not enforceable through the courts.   Before a spouse can seek a modification in the court, he/she must first ascertain if the provision he/she wants modified can be modified.  In Massachusetts, Separation Agreements either “merge” or survive”.  When a separation agreement “merges” it means that all provisions in the agreement may be modified through a Complaint for Modification, upon a showing of a material change in circumstances.  When a separation agreement “survives” it means it has its own independent legal significance, and can only be modified in the rarest of circumstances.  The courts have stated that there must be “countervailing equities” to modify a surviving agreement.  Although the term “countervailing equities” has not exactly been defined by the court, it has generally meant the most extraordinary circumstance will permit a modification, such as a person becoming a ward of the state absent a modification.   Also, certain parts of a separation agreement can merge, and other parts can survive.  Almost always, provisions regarding division of marital property and marital debt, survive, so those provisions can only be modified in the rarest of circumstances.  Provisions regarding children, such as custody, the parenting plan, child support, and payment of college costs, almost always merge, and can be modified.  Other provisions, such as life insurance and alimony, can survive or merge, depending on a case-by-case basis.   Thus, if a provision of a separation agreement has merged, and a spouse would like to modify this provision, then upon a showing of a material change in circumstances, the spouse may obtain a modification.   A modification may be obtained in two ways.  One, if the other spouse does not agree to the modification, then the spouse must file a Complaint for Modification and proceed with a contested modification action.  However, if both spouses agree to a modification, they may jointly file a Joint Petition for Modification pursuant to Supplemental Probate and Family Court Rule 412.  The Joint Petition method is faster and more cost effective, as there typically is no hearing in court on the Joint Petition; rather the court handles the Joint Petition administratively.   Modification actions are certainly not uncommon.  However, spouses should always make sure any modification is adopted by the Probate and Family Court, so the modification is official, and may be enforced, should one spouse not live up to the terms of the modification.     Read the full article

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What You Should Know Before You File for Divorce In Massachusetts

Divorce, word cloud concept on white background. Divorce can be a confusing and complicated process.  Negotiating your way through the court system can be difficult, particularly if you don’t have the assistance of an attorney to guide you through the system.  Here are some facts and other things you should know about filing for divorce in Massachusetts.   A vast majority of divorces settle before trial. There are 2 ways to file for divorce in Massachusetts.  The first is a joint petition, in which both spouses jointly file for the divorce.  The other is a Complaint for Divorce, where one party files, and the case proceeds in a contested matter.   In the first method, a Joint Petition can be resolved relatively quickly.  After the parties file all the necessary paperwork with the Court, including a signed Separation Agreement, the parties are then assigned an uncontested hearing, which is usually scheduled a few weeks to a few months from the date of filing, depending on the backlog of each court.  After the uncontested hearing, the divorce is finalized.   With a Complaint for Divorce, the matter is assigned to a judge, and follows a contested litigation track until the case is resolved by settlement or by trial.  The Probate and Family Court assigns all contested divorces to a 14 month time track, which means it estimates that all divorces will be resolved within 14 months.  Oftentimes, divorces are resolved in much less than 14 months, but the 14 month time-track is simply and estimated average.   Also, about 95% of all contested divorces do ultimately settle.  Thus, it is highly unlikely you would ever have to go to trial once you file for divorce.   Set Goals and Realistic Expectations. In a divorce, many spouses think they will ultimately “have their day in court” or “tell their story.”  Although many facts do come out during the course of a divorce, spouses do not typically get a day in court where they can air their dirty laundry and tell their side of the story of the divorce. Realistically, the Probate and Family Court is very backlogged.  This means, spouses are limited to the specific facts needed for the hearing scheduled that day.  If it is a motion for child custody, the court will want to hear about each spouse’s ability to parent, and not about refinancing the mortgage on the house.  If it is a motion about alimony, then the court will want to hear about each party’s income, not about one spouse returning a child a half hour late last week.  There will never be a hearing for each spouse just to tell their side of the history of the marriage. With that in mind, spouses should set some goals and expectations that are realistic for the divorce process.  Spouses should consider what needs to be presented to the court to obtain these goals.  Issues each spouse will want to consider are: 1) alimony; 2) division of marital assets and marital debt; 3) child custody and parenting plan; 4) child support and payment of college costs; 5) maintaining life insurance; 6) maintaining health insurance; 7) filing taxes and the tax dependency exemption. These are the main categories that will be addressed in the divorce.  Each spouse should consider what he or she wants out of each of these categories, and narrowly tailor their argument for each issue.  Each spouse should set realistic expectations.  If a spouse expects to “take their spouse to the cleaners,” then those expectations are not realistic.  Divorces are resolved equitably, which means any resolution must be fair and reasonable for both spouses.  That typically involves some give and take.   Don’t fight over the small stuff. All too often when spouses are nearing the end of a divorce, they begin fighting over small stuff, such as knick knacks in the house.  Spouses can spend hours fighting over little things, that may not have large monetary value, but it is one of the last few items to address, and so each spouse wants to “win” and keep whatever he or she is fighting over. The reality of it is, this probably isn’t worth it in the long run.  Spouses will spend more money paying their lawyers to go back and forth fighting over the item, than the item is worth.  Spouses should really consider if such small things will be worth it in the long run.  If it isn’t worth fighting over and keeping in the long run, then it probably isn’t worth paying your lawyer to fight over now. Only you can decide what is best for you. During a divorce, you may have your attorney giving you legal advice, and you may even have a financial advisor or other expert giving further input.  Remember, only you know your circumstances best.  As the party to the case, you are the master of your case.  Your lawyer has an ethical duty to act in your best interests.  Thus, when it is time to make important decisions in the case, you should rely upon what you feel is best for you.  Don’t rely on anecdotal stories from friends and family.  You certainly should consider what your attorney recommends, and any other experts you retain.  However, always remember to keep your expectations realistic. Stay Organized. During a divorce, you will be asked to gather and exchange a lot of documentation.  This includes a financial disclosure at the beginning of the case, pursuant to Supplemental Probate and Family Court Rule 410, and then documents requested in discovery later on.  The more organized you are, and the more documents you can gather on your own, the less you will have to spend on legal fees for your attorney to gather and obtain these documents.   Hire an Attorney. Divorce is a highly technical process.  Even if a spouse chooses not to hire an attorney, he or she will still be held to the same standard attorneys are held to when presenting issues to the court.  That means, spouses who represent themselves, will have to understand the Rules of Evidence and also the Rules of Domestic Relations Procedure in order to have their issues properly presented to the court.  This oftentimes results in spouses no getting the point across to the court.  Attorneys can be costly, but the cost of not hiring an attorney can be even greater.  If a spouse cannot afford an attorney for the entire divorce process, then he or she should consider hiring an attorney for a limited purpose.  Under the Limited Assistance Representation program, qualified attorneys may represent a spouse in a divorce (or any other Probate and Family Court matter) on a narrow issue.  This can be arguing a single motion, drafting certain documents to be submitted to the court, or reviewing and discussing strategy with the spouse.  This is often less costly, but can yield invaluable legal advice and assistance to the spouse.   You will get divorced in the end. Although the divorce process may seem long and drawn-out, it will end.  Just be patient and keep calm throughout.  Remaining level-headed and not losing sight of the goal will help you make good decisions.  There may be times that it feels like the divorce will never end, but it will.  The 14 month time track the Court assigns is a good prediction of how long your divorce will take.  In all odds, you will be divorced in 14 months or less. Read the full article