It is not uncommon for a spouse to want to modify certain provisions of his or her Separation Agreement after a divorce. As time goes on, circumstances will most certainly change for the former spouses. However it is important that spouses make any changes through the Probate and Family Court, and not through a private agreement, as private agreements are not enforceable through the courts.
Before a spouse can seek a modification in the court, he/she must first ascertain if the provision he/she wants modified can be modified. In Massachusetts, Separation Agreements either “merge” or survive”. When a separation agreement “merges” it means that all provisions in the agreement may be modified through a Complaint for Modification, upon a showing of a material change in circumstances. When a separation agreement “survives” it means it has its own independent legal significance, and can only be modified in the rarest of circumstances. The courts have stated that there must be “countervailing equities” to modify a surviving agreement. Although the term “countervailing equities” has not exactly been defined by the court, it has generally meant the most extraordinary circumstance will permit a modification, such as a person becoming a ward of the state absent a modification.
Also, certain parts of a separation agreement can merge, and other parts can survive. Almost always, provisions regarding division of marital property and marital debt, survive, so those provisions can only be modified in the rarest of circumstances. Provisions regarding children, such as custody, the parenting plan, child support, and payment of college costs, almost always merge, and can be modified. Other provisions, such as life insurance and alimony, can survive or merge, depending on a case-by-case basis.
Thus, if a provision of a separation agreement has merged, and a spouse would like to modify this provision, then upon a showing of a material change in circumstances, the spouse may obtain a modification.
A modification may be obtained in two ways. One, if the other spouse does not agree to the modification, then the spouse must file a Complaint for Modification and proceed with a contested modification action. However, if both spouses agree to a modification, they may jointly file a Joint Petition for Modification pursuant to Supplemental Probate and Family Court Rule 412. The Joint Petition method is faster and more cost effective, as there typically is no hearing in court on the Joint Petition; rather the court handles the Joint Petition administratively.
Modification actions are certainly not uncommon. However, spouses should always make sure any modification is adopted by the Probate and Family Court, so the modification is official, and may be enforced, should one spouse not live up to the terms of the modification.
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