Many things change after divorce – people move, change jobs, get laid off, children get older and have different needs such as college expenses, and more. Covid-19 is affecting many people’s lives, and impacting their work as well as their financial health.
Covid-19 may force a re-evaluation of certain terms of divorce or other judgments, and require a modification of the judgment. While there may be limitations to modifying your judgment because of language in your specific agreement or the terms of your divorce or other judgment, Massachusetts law generally provides that a party can seek modification of a prior court judgment including alimony and/or child support if there has been a material change of circumstances. Covid-19 for some people may result in a material change of circumstance where job loss or reduction in hours makes it impossible for a party to meet financial obligations ordered by the Court.
Because the Court process can take a long time, it is advisable for a party to file a modification complaint regarding support as soon as possible, particularly where retroactive relief is limited Even now, during a pandemic where the Courts are largely shut down, modification complaints can still be filed and served so that the issue of retroactivity is preserved.
Once a modification complaint is filed, any new orders established by the Court may be retroactive, but only to the date that notice of the modification complaint was given to the other party either directly or through the appropriate agent as established by law. Modification can also be done by written agreement submitted to the Court, and the Court for certain types of modifications has an administrative process where the modification agreement may be allowed without the parties having to appear in Court. This makes for a faster modification process if you can come to agreement.
How to decide whether to file a modification or not? Seek the advice of counsel before filing a modification. The attorney can review your divorce judgment and agreement and advise you regarding any limitations or nuances that might affect modification. Sometimes post-divorce changes are not material enough to warrant modification, and a client will be wasting their time and money in pursuing a modification.
At the Levitt Law Group, when we meet with a client about a potential modification complaint, we review the circumstances that existed at the time of the judgment the client would like changed, evaluate what has changed including doing the math with clients to see if a modification makes sense, and then helping the client decide what the best course of action might be – modification or not, and the timing of the filing of any modification complaint.. Some agreements have a requirement for mediation or other dispute resolution process first going to Court; a client may also want to try to resolve the issue out of Court, and have an ex-spouse or partner who they believe will be reasonable in discussing with them a potential modification by agreement.
What information should you gather when considering modification? When you meet with us at the Levitt Law Group, some of the information that is helpful for you to bring with you are your initial divorce or paternity agreement and accompanying judgment and financial statements, any agreements and/or accompanying court judgments that entered thereafter, documentation of your current financial circumstances including current and end of prior year paystubs, prior year W2, unemployment information if receiving benefits, prior year tax returns, and if self-employed current profit/loss statements. Be prepared to have a frank discussion about the pros/cons of modification with the attorney.
Do not wait too long to consult with us, as the longer you wait, the longer the period of non-retroactivity may become with losses that cannot be recouped. Covid-19 is not an impediment to determining whether modification is appropriate and even filing an action in Court or initiating a process such as Mediation or Collaborative Law to try to resolve your concerns cooperatively. The tools available before Covid-19 are still available to clients – while it may take a little longer to resolve, it is better to be proactive than to wait.
Copyright Karen J. Levitt 2020, all rights reserved.