One of the most common questions I am asked by clients is: when will the judge grant a Complaint for Modification regarding child support? There are several situations in which a modification is appropriate. According to the 2009 Child Support Guidelines, an existing order for child support may be modified in any of the following situations:
1. the existing order is at least 3 years old; or
2. health insurance previously available at a reasonable cost is no longer available; or
3. health insurance not previously available to a party at a reasonable cost has become available; or
4. any other material change in circumstances has occurred.
HOWEVER, Mass. Gen. Laws ch. 208, s. 28 provides that “orders of maintenance and for support of minor children shall be modified if there is an inconsistency between the amount of the existing order and the amount that would result from the application of the child support guidelines…”
In deciding cases for modification of existing child support orders, judges have adhered to the language of the Guidelines rather than the statute, and granted modifications (not falling into the first 3 categories) only when there had been a material and substantial change in circumstancessince the order was entered. This all changed on March 12 when the Supreme Judicial Court issued its decision in Morales v. Morales (SJC 11104). Writing for the court, Justice Botsford, held that the 2009 Guidelines are not consistent with the standard set out in Section 28, thus eliminating the need for a “material and substantial change in circumstances.”
So what exactly does this mean? This does not mean that a complaint for modification may be used as a substitute or alternative to the normal appellate process. Appeal is still the appropriate avenue to challenge the validity of a child support order. Nor does it mean that a complaint for modification is appropriate when nothing has changed other than the payor’s desire to reduce their support obligation. The ruling in Morales v. Morales simply enforces that the statutory language in Section 28 – commonly referred to as the inconsistency standard – is what courts need to be applying when deciding modification cases. Some change in circumstances must occur in order for a modification request to be properly made, otherwise, there would be no inconsistency with the Guidelines. If either party’s salary has changed, or there has been a change in health/dental insurance, child care costs, or other support obligations, a modification will be appropriate.