Boston Divorce Lawyer – Boston Divorce & Family Law Attorney Blog

As discussed in my post about Temporary Orders, in the Boston area and all throughout Massachusetts, Probate Courts may issue orders while your case is pending in order to outline the rights and obligations of the parties.  If you and your soon-to-be former spouse are having difficulty determining who is going to stay in your home, you can file with the court for an Order to Vacate.

The Order to Vacate is good for up to 90 days, with the opportunity to renew if the need for the order persists.  In order to get the court to issue the order, you must show that without the order, you or your child’s health, safety, or welfare is at risk.  If you fear that you are in immediate danger, this order may even be issued immediately without the other party being present at the hearing (though you will need to go back in 5 days rather than 90 under these circumstances.)

The court can even issue this order if the other person has already left the home, or if you have left the home because you feared for your safety and would now like to go back.

You’ve filed a complaint with the court, and now you’re waiting to settle or go to trial, but you and your soon–to-be former spouse can’t agree on anything in the meantime.   Unfortunately, for many couples, this is the case.  Who gets to stay in the house?  Who pays for what?  Should someone be paying child support or alimony?  During the negotiating process, all of these issues and others can be handled through Temporary Orders.

Unlike a Final Judgment, Temporary Orders are exactly what they sound like:  orders of the court that are meant to temporarily outline each person’s rights and obligations until your case has been resolved.  From the time you initially file a complaint until the court finally enters a final judgment, Temporary Orders may be put in place.  These orders may also be modified or replaced over the course of the case, based on changes that occur during this time.

If you have recently become eligible for SSDI (Social Security Disability Insurance), it is likely that your minor child is also receiving a “Dependency Benefit”:  his or her own monthly benefit from the Social Security Administration (SSA).  The question is how this will affect your financial obligation in terms of child support?  In the Commonwealth of Massachusetts, it can make a big difference.

In the past I’ve discussed how to modify Child Support Orders.  In that post, I pointed out that to modify the order, the court will need to see that a significant change in material circumstances has occurred.  Becoming eligible for SSDI is exactly the type of change I was referring to.  In fact, the benefit your child receives might even completely cancel out your weekly child support payments!

Consider what a Child Support Order is really for:  to ensure that your child is financially supported.  That the support is coming in is what counts.  If the Dependency Benefit your child receives is as much or more* than the amount you should be paying under the support guidelines, there’s little reason for you to be paying additional money above and beyond that.  By bringing your SSDI benefit (and your child’s corresponding Dependency Benefit) to the attention of the court, you may be able to substantially decrease, if not eliminate entirely, your weekly obligation.

*Note that where the Dependency Benefit is greater than the amount owed under the guidelines, your child will continue to receive the full benefit, and you will not be entitled to the difference between these amounts.

You’ve gotten a divorce and both you and your ex-spouse walked away with a division of property.  Now, for whatever reason, you want to modify that agreement to get more of the marital assets.  Can you do it?  It depends.

For the most part, the answer is no.  A property division is final and cannot be modified except if there was mistake, inadvertence, excusable neglect, newly discovered evidence or fraud.  This is all pursuant to Massachusetts Domestic Relations Procedure Rule 60.  In order to win a modification on a Rule 60 motion, you need to show that there was one of those things listed in the rule.  Most of the time it will be newly discovered evidence such as that the stock options were actually worth more than what was listed originally or fraud.  Fraud would be that you discover and can prove that your spouse hid money or he lied about his financials.

Rule 60 motions are very hard to win and so for the most part, a Complaint for Modification will not work on a property division in Massachusetts.

Child support is always modifiable in the probate courts of Massachusetts.  The courts realize that either parent’s income will fluctuate during a child’s life and that the financial needs of children change over time.  Whether the original child support order was made pursuant to a Separation Agreement or after a trial, an order of the court, child support can be modified.

The standard used to modify child support is that there must be a significant change in circumstances.  Something significant must have happened between the last order of child support and the new order you’re trying to obtain by a Complaint for Modification.  A significant change can be a dramatic raise in the other parent’s income or them winning the lottery, a big decrease in your income, or a big increase in the child’s needs (such as an accident or injury).

A request for modification will not be approved if there isn’t a significant change.  As you are asking the court to change the child support order, you must prove to the court that there is a significant change for the court to approve an increase (or decrease) in child support.