A modification is a change to an existing judgment, either the original divorce judgment of the parties, a previous modification judgment, or both. There may be one issue at hand, such as custody of the children; or several matters to modify, such as custody, visitation, and child support. No matter the circumstance, however, for a modification action to be valid, it must rely on a material change in circumstance. Something in one or both of the party’s situations, or that of the children, relative to the issue(s) at hand, must have changed in some substantial way since the judgment of divorce. For example, if the Husband was earning $100,000.00 at the time of the divorce, a support order would have entered according to those earnings. Suppose five years down the road, the Husband has lost his job, and his unemployment benefits are set to expire. In this case, there would be a material change in circumstance and the Husband would have the right to seek a modification to the support order based on earnings he no longer has.
What Provisions from a Divorce Judgment are Subject to Future Modification?
There are two terms that are generally incorporated into a divorce agreement; merger and survival, and those two terms have very distinct meanings with respect to whether or not a provision can be revisited and/or modified at some point down the road.
When a provision merges, it becomes part of the divorce judgment but has no independent authority outside of the probate and family court, meaning that where there is a material change in circumstance, that provision can be adjusted by a probate and family court judge in the future. For example, child support typically merges with a divorce judgment, so that as people’s income levels fluctuate or needs of the children change, one or both parties have the ability to go into court and seek an adjustment to the support order.
When a provision survives, it also becomes a part of a divorce judgment but additionally inherits a self-standing authority, meaning that this provision cannot be changed down the road, even if a material change in circumstance happens to occur, absent an extreme emergency. For example, the division of property subject to a divorce judgment almost always survives the judgment. There is to be one division of everyone’s “stuff” and that’s it; there’s no going back.
So, if the issue at hand is modifiable due to it having merged with the judgment, and there is a material change in circumstance from the time of the divorce, a modification action would be appropriate.
Some issues that are typically subjects of modification mediation are:
- Custody arrangements; visitation; parenting plans;
- Support; alimony and/or child support
- College education and the payment thereof;
- Removal; if one party seeks to move from the commonwealth with the child(ren)
Who Can Participate in Modification Mediation?
Any two parties to a former judgment in the probate and family court. All that is required for participation in modification mediation is a mutual willingness to work collaboratively with the intention of addressing a change in circumstances in the most private, dignified, and cost efficient way.
In the event that, despite best efforts, individuals are not able to reach a full agreement via modification mediation, the work in progress can still be invaluable, providing a basis from which the parties’ individual counsel can work.
What are the Benefits of Modification Mediation?
With modification mediation, the financial and emotional costs typically associated with litigated actions are substantially reduced!
With standard litigated modifications, both parties typically retain individual counsel for what is often a belabored, arduous, and expensive process. Mediation, on the other hand, is voluntary processes by which two people meet in a more relaxed environment, with an impartial third party, at days and times that are convenient to them rather than according to the Court’s dictates and limitations. The pace is set by the participants who are spared the frustration associated with court delays or imposed deadlines. Perhaps most importantly, mediation occurs in the privacy of a mediator’s office, opposed to having issues disposed of in open court for all to see and hear.
In modification mediation, parties retain control over their own lives and actively participate in creating an agreement that is specific to only them, versus relinquishing control to a stranger and allowing a Judge to make the most personal decisions on their behalf. In mediation, unlike in court, there are no surprises.