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General question about a modification.

Boston, MA |

Pretend someone is modifying a divorce, they have the grounds to do so, etc. This is hypothetical so assume they have done everything they needed to do up to this point.. I am not asking how to do it, just a general question about a scenario that could come up during the hearing.
So hypothetically speaking if the Plaintiff is arguing why her 300 a week order should be increased to 400 (pretend she has grounds!) can the Defendant argue that he now wants to request that the order be changed to 200 a week and then tries to argue why he thinks it should be reduced. Can he do this or is he only able to argue that day why it should NOT be increased and if he wants to request that it be decreased would he need to file his own modification? Does he have the right to do it at Plaintiffs modificati

Attorney Answers 4

  1. Best answer

    The Defendant would need to file a Counterclaim for Modification. This is normally done at the same time an Answer to the original Complaint for Modification is filed. A Counterclaim must arise out of the transaction or occurrence that is the subject matter of the opposing party's original claim. Unless a Counterclaim were filed, the Defendant could not argue for a reduction in support.

  2. In Massachusetts, the number spit out by the guidelines after plugging figures in is presumptively correct. This means that unless the hypothetical plaintiff and defendant can show a good reason why the number should be different, the number spit out by the guidelines is going to be what the order says.

    I'm assuming the hypothetical plaintiff has used the form generated by the probate and family courts to file their complaint, their hypothetical complaint states that there's now a difference between the amount required by the guidelines and the amount paid and a modification of the child support order to bring it in line with the guidelines is in order. This language doesn't actually dictate a request for an increase or a decrease--just that the amount being paid is different than the presumptively correct amount. If this form was used, and this is the language in the original complaint, then it really comes down to what the guidelines say.

    As a note, the 2013 changes to the guideline calculations often result in a lower payment if all other things remain equal.

  3. If you're going to argue something before the Court, the Court has to know that you intend to argue it. So if you want to argue for a downward modification you have to file a complaint for modification and state your case in the moving papers.

    This answer is provided for informational purposes only and it is not intended as legal advice. Additionally, this answer does not create an attorney-client relationship. If you wish to obtain legal advice specific to your case, please consult with a local attorney

  4. I completely concur with counsel who posted their answer. Procedurally, the Court only hears claims which are properly before it - i.e., someone followed the rules and filed his or her claim. If defendant files a counterclaim, both main claim and counterclaim may be heard together, but not if defendant did not bring any claim at all. Good luck and I hope these answers help!

    Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.

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