Sunday, December 1, 2013

My Ex and I agree to change the terms of our divorce. Do we have to go to Court?

Once a Massachusetts Court has made an order or judgment in a divorce or paternity case it is enforceable by all of the powers of the Court and State for enforcement of judgments. This means that any change must be approved by the Court. Of course minor changes in the parenting plan don't need court approval. (If the parties swap weekends, as an example, no court involvement is required.) However significant changes, such as anything to with money or finances will need court approval.

There is a trap if the parties don't change the court order.  As an example, assume that the divorce required the Husband to pay $300.00 per week. The ex-spouses agree that the child should spend more time with Father and enter into an agreement for the child to live half of the time with each parent. Because the child is with each parent for an equal amount of time, the parents also agree that the Ex-Husband should stop all child support payments. The Ex-Husband, relying on this agreement, stops the payments. Five years later, the Ex-Wife files a contempt in Probate Court for the five years of unpaid child support. Since the Court never approved the agreement, the original order is still enforceable. The Ex-Husband owes five years worth of support or $78,000.00 plus interest and possibly attorney fees.

This trap can be avoided by the parties seeking Court approval of their agreement. Parties tend to avoid court because they think it will cost a lot of money. However, the Probate and Family Court has a simplified proceedure to approve agreements of this nature and have forms available on their website which the parties can fill out and submit. This procedure is explained in Rule 412 Of The Supplemental Rules Of The Probate And Family Court.
Every person in Massachusetts who agrees to change the financial terms of child support or spousal support should not rely on the agreement. Instead, they should use the simplified proceedure and have a judge approve the changes. Then, they can safely rely on the order of the court. An experienced Massachusetts Family Law Attorney can help parties present their agreement to the Court for approval.


  1. If you and your spouse cannot agree on how to resolve your family law issues, you can go to court and ask a judge to decide for you. If you are married, you will need to apply to a court to obtain a divorce order in order to end your marriage.

  2. You might want to seek a divorce lawyer first. Maybe you can do something about it without taking too much time. It's not bad to first ask for some advice.

  3. If you and your former spouse see eye to eye on the changes, modifying your agreement or the judge's court order should be relatively hassle-free, assuming that the court shares your perspectives. Just as you did when you got your divorce, you must draw up a revised agreement with the help of your attorneys to be certain that you do not create any problems for yourselves. Then the attorney of whoever wanted to change the agreement files the agreement with the court so that the new agreement can be court ordered. However, if you want things changed and your spouse doesn't, or vice verse (which is more likely), you may be in for a replay of your divorce battles.