Modification & Enforcement

• Modification
• Enforcement

Modification

You may need to request a change of a court order because of changes in your life or the lives of your (ex-) spouse or children.  You may want to change child support payments or the parenting plan you have made with your children’s other parent as it relates to custody or visitation.  Only a judge can change a court order.  True, you and your former spouse can agree on modifications, but it is still necessary to ask the judge to make the change legal in writing.

Making changes to existing custody arrangements or support orders is not uncommon.  The court recognizes that circumstances change over a period of time and that a previously determined court order or obligation may not be the best situation presently.

The standard for modification in Massachusetts is that there must be a significant change of circumstances.  When relating to financial support, the new support being sought must be at least 20 percent different from the old support.  If the difference is less, the modification may be denied.  As it relates to the parenting plan, Massachusetts follows a strict adherence to the best interest standard and often modifies components of a parenting plan when convinced it is in the best interest of minor children before them.

There are various types of modifications – temporary, permanent and retroactive.  Furthermore, all kinds of events can trigger a modification.  In fact, many of the same factors that cause initial rulings can also cause it to be modified.  For example:

• Each person’s income and earning capacities
• Assets available for support
• Employee benefits of each party
• Income of a new spouse or cohabitant
• Health condition of the parents or children
• Modification of custody arrangement
• Economic hardship
• Change of employment
• New children or new mates
• Change in law
• Cost of living

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Enforcement

Even when the judge says you win, what do you do if your ex-spouse refuses to comply?  A Massachusetts divorce judgment is, after all, just a piece of paper, right?  Wrong.  There are plenty of things you can do to enforce the terms of your divorce.

If an ex-spouse refuses to turn over property to you that was property awarded in the judgment, they can be brought back to court.  There, the judge may ask why they should not be held in contempt of court (and be jailed) for refusing to obey the judgment.

If you are entitled to child support or alimony, you can sometimes garnish your former spouse’s wages or bank accounts directly to collect.  There is also a debtor’s prison – the judge can put a support payer in jail for refusing to pay child support or alimony.

All fifty states now enforce each other’s support orders.  There is a federal law that allows the tracking of social security numbers to locate support payers.  In short, they can run but they cannot hide!

In Massachusetts, the Department of Revenue has an Affidavit of Arrears Package and helps parents who are owed past-due support (arrears).   Assistance from this state agency is helpful to some, but many complain the process is slow, is not customer friendly, and – like most state agencies – overworked and understaffed.  If you are in need, contact Massachusetts Support Collectors, a privately-held support collection company based in Massachusetts.

Finally, clients often call our office asking whether they can deny their ex-spouse visitation.  The answer is always the same:  with the exception of physical abuse, unless the court has granted a modification of the visitation arrangement, you can not and should not deny visitation. 

Denying visitation is one of the biggest mistakes made by most custodial parents.  You may believe you have a justifiable reason for denying the visitation rights but, by law, you are not permitted to do so.

Often times, late child support payments or the lack thereof will cause visitation disruptions, but the court always looks and treats visitation and child support differently.

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Attorney Irwin M. Pollack, founder of the Massachusetts Family Law Group and The Law Offices of Irwin M. Pollack, focuses his practice primarily on divorce, child support & alimony, custody & visitation, property distribution, modification & enforcement and business valuation in Boston communities including Andover, Lexington, Wellesley, Weston, Belmont, Topsfield, Marblehead, Swampscott, Manchester, Natick, Framingham, Marlborough, Sudbury, Dover, Duxbury, South Shore, North Shore, Worcester, Shrewsbury, Holden, Cape Cod, Sharon, Foxboro, Newton, Needham and Chestnut Hill.  Contact us for a free, no-obligation consultation or call (781) 461-9800.