Going through a divorce can be a stressful and challenging process. If you have joint children with your spouse and have been married for quite some time, divorce agreements can take quite a long time to make.
Divorce agreements can be made between you and your spouse with minimum input from anyone else or you can seek mediation, ask for help from a divorce attorney and if all else fails, allow the Probate and Family Law Court to determine an agreement which will establish the parameters of your divorce.
Divorce agreements typically address the main decisions which have to be made when two spouses separate and live different lives after their marriage has ended. These major decisions are:
- deciding how marital assets are divided; if the court has to make the decision about division of assets, note that in Massachusetts, it considers all assets, marital, pre-marriage, individual assets and inheritances for division, under the state’s ‘equitable distribution’ policy;
- deciding how joint children are cared for after the divorce, including decisions about visiting time if only one spouse is given the main responsibility for providing a home for the children;
- deciding what spousal support, if any, should be provided; and
- deciding what child support should be provided.
As has already been mentioned, all these decisions can be made by the two spouses without having to ask the court to intervene. However, for a divorce petition to be accepted by the court, an agreement must be made by the two spouses and signed and notarized if it hasn’t been determined by the court. A divorce agreement, whether made solely by the two spouses or made by the court after it has assessed the circumstances of the two spouses, is effectively a legal agreement. If either spouse chooses to break the agreement, they could face a legal challenge and may end up having to pay fines or suffer other penalties.
Divorce agreements can be modified later
It only makes common sense to seek to modify a divorce agreement in the years following a divorce if the conditions the two separating spouses were living with have changed substantially. Of the major decisions which were made in the original divorce agreement, it is rare that asset distribution or division is likely to be touched in a post-divorce agreement modification. Once the assets have been sorted out in the original agreement, the only justification for modifying them in a post-divorce agreement modification is if it is found out that one of the spouses had failed to provide the correct information about assets originally or had deliberately withheld or falsified such information.
So, what sort of things would be addressed in a post-divorce agreement modification? Basically, everything else other than marital assets could be modified. That means support for children, spousal support and child custody arrangements.
Reasons for seeking a post-divorce agreement modification
There are several quite natural reasons for seeking a modification to a divorce agreement. These are:
- one of the two spouses who was receiving spousal support remarries;
- the spouse who was receiving spousal support becomes better educated and with new qualifications is able to get a better job or obtain a better income than that spouse had on divorce;
- the children who were being cared for by one of the two spouses grow up and become financially independent of their parents;
- either spouse moves away from where they were living when the divorce agreement was made and this means that parenting or visiting rights and responsibilities have to change.
The post-divorce agreement modification process
Post-divorce agreement modifications basically follow the same process as the original divorce agreement. A post-divorce agreement modification can be settled by the two ex-spouses themselves without having to seek a decision made by the court. As with the original divorce agreement, this is by far the best arrangement, as both ex-spouses are far more likely to accept the terms of the agreement modification and stick to them. As the modifications are very likely to focus on the children of the original marriage and their welfare, a jointly made amicable agreement modification is going to be in the best interests of the children, too.
Unfortunately, just like not all divorces are made without a degree of acrimony, indecision or disagreement, it is likely that when there is any request to modify a legally made divorce agreement it might not be possible for the two ex-spouses to do this all by themselves.
The first step if external assistance is required is to go through mediation. Mediators are professionally equipped to help two parties come to an acceptable agreement, even if not all of the changes are desirable to one or the other party. Mediators cannot enforce an agreement modification. They just help the two adults get closer to making an agreement that they will agree to. Mediation can be arranged by one or both ex-spouses independently, or through the assistance provided by an attorney. When the two sides are quite far apart in coming to an acceptable agreement, it is common for both parties to be represented by their individual attorneys.
If mediation is a failure, or if one of the two ex-spouses is adamant about not accepting any sort of change to the original agreement decisions, then the person in most need of seeing an agreement modification can turn to the court to make the decision.
If it falls to one of the two ex-spouses to be the only one to seek modification of the original divorce agreement, then they will need to file a petition to modify a divorce agreement with the court, providing reasons for the modification, such as one or more of those listed above in this article.
Once the petition to modify has been assessed by the court, it will set a date for a hearing. Both ex-spouses and their legal representatives, if there are any, will be expected to attend. At the hearing, the judge will ask questions and listen to what the two opposing parties have to say and consider any evidence presented to support their cases. Then, the court will make a decision to modify the original agreement or not and any agreement modification then becomes legally valid. The party who still disagrees with the decision may then appeal the court’s decision.
For more information, visit our website Mucci Legal or contact us for a free initial legal consultation today.