Whether or not the terms or provisions of a separation/divorce agreement may be modified and how to go about getting those terms or provisions modified will depend on a number of things including the language in the agreement, the actual terms or provisions that one is seeking to modify and the circumstances bringing about the request for a modification. In light of the very particular and specific rules relative to the modification of a separation/divorce agreement, it would be most prudent to consult with an experienced divorce attorney prior to filing a Complaint for Modification with the Probate and Family Court. An experienced attorney will be able to provide counsel on the strengths and weaknesses of your case. Once you’ve decided you want to move forward in modifying the agreement, the attorney can provide counsel on the best way to proceed. If at all possible, it is best to reach out to the other party to discuss whether that party would agree to a modification. If so, the attorney can assist with a Joint Petition to Modify. If not, then it will be necessary to file a Complaint for Modification, and an experienced attorney will know the proper language to include in the complaint, thereby avoiding the necessity of filing a later Amended Complaint.

The standard for successful modification is “substantial and material change in circumstances” that warrants the requested modification. A substantial and material change in circumstances can be number of things including, but not limited to a change in employment or income, a change of residence, a behavioral change in a child or children, a significant change in the health of one of the parties, incarceration or hospitalization of one of the parties, etc. These changes can affect spousal and/or child support, custody and parenting schedules.

The terms or provisions within a Separation/Divorce Agreement either “merge” or “survive”. Terms or provisions that merge may be modified upon a judge finding that a substantial and material change has occurred and the change is warranted. Child-related issues are always modifiable and thus always merge. Spousal support or alimony terms/provisions will also merge unless the parties otherwise agree that those terms will survive and the particular judge assigned to your case allows the spousal support/alimony language to survive. It is important to understand that if the parties do not agree to surviving alimony terms, a judge cannot make an order for the terms to survive and some judges will not accept an agreement by the parties that has surviving alimony language within it. Surviving provisions are generally not open to modification, but can be modified under rare and specific circumstances. An example of a surviving provision is the division of real or personal property.

It is important to understand that the filing of a Complaint for Modification is just the first step in the process, and just like filing a complaint in most civil matters if the parties are unable to reach an agreement, it may be several months or more than a year before the matter goes to trial. In addition, it can be an expensive process, especially if the case requires that extensive discovery be completed. Many times it is necessary to obtain extensive documentation relative to income, school or medical records, etc. to support your position that a modification of the agreement is warranted. In addition, it is important to understand that Temporary Orders are not usually granted in connection with a Complaint for Modification absent an emergency, so the modification you are seeking may not occur for quite some time. However, some judges can be “lenient” on the emergency requirement in connection with a Motion for Temporary Orders on a Complaint for Modification.

The thing to remember is that there is a lot to consider and analyze when deciding whether to pursue a modification of a separation/divorce agreement and it is always best to seek the advice and representation of an experienced family law attorney. If you are considering modifying an Order that you have in the Probate and Family Court or, if you have questions about changing or modifying your agreement or Order, please contact us to discuss your matter with an experienced family law attorney.