Ex-spouses often find themselves in situations they didn’t anticipate when they divorced, especially when children are involved. When ex-spouses can’t agree on how to resolve a post-divorce dispute there is always recourse to the court as adversaries, asking a judge to modify or reverse a previous order or judgment. However, many post-divorce changes can be easily accommodated by agreement with little or no court involvement. When ex-spouses agree on the changes needed to adjust to new circumstances, there are three non-adversarial options available: verbal agreements, written agreements and joint petitions.
1. Minor changes are often made informally by verbal agreement – like changing a weekly parenting schedule. When parties verbally agree to a post-divorce modification the court is unaware of the change. If a verbal post-divorce modification is later contested by one of the parties, a judge may uphold it, ignore it, modify it, or enforce the court’s last order or judgment. Thus verbal, post-divorce modifications are the least reliable of the non-adversarial options if subsequently challenged – but when uncontested they are the most practical and probably the most common.
2. A well-drafted separation agreement can enable ex-spouses to make enforceable, post-divorce modifications in writing without returning to court. At minimum, a written, voluntary post-divorce modification should be signed, dated and notarized. If one party later contests a clearly written, fully executed post-divorce modification that has been freely negotiated and expressly provided for in their separation agreement, a court is likely to uphold it – especially when the parties have relied on it for a long time. Thus fully executed, voluntary post-divorce modifications can be as enforceable as if incorporated into the original separation agreement – but if it is subsequently contested, a judge will determine if it’s enforceable.
3. In 2000 a Massachusetts court of appeals ruled against the right of divorced parents to enter into a written, post-divorce agreement to lower the father’s child support below the court ordered amount. [Quinn v. Quinn, 49 Mass. App. Ct. 144 (2000).] The appeals court reasoned that parents may not bargain away the rights of their children without court approval. After Quinn the Probate and Family Court created a joint petition under Supplemental Rule 412 – establishing a procedure for a judge to ratify (modify or reject) reduced child support agreed by the parents after divorce.
In 2013, Supplemental Rule 412’s single-issue focus was vastly expanded. It now permits parties to jointly petition the court to modify a judgment or order on virtually any post-divorce issue – including alimony, custody, inheritance, asset transfers and child support. When both parties submit their agreement on a signed and notarized court form (and all the other requirements of Rule 412 are met) – a judge has 21 days to either allow the joint petition without a court appearance – or to compel additional information and/or a court appearance. If the agreement is approved no hearing is necessary, and both parties will receive a copy of the court’s decision in the mail within 30 days of filing all the required paperwork.
A copy of amended Rule 412 with a general information sheet, a checklist of required forms and instructions is available at: https://www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt/index.html