A Court May Modify A Merged Provision in a Separation Agreement Regarding Children’s Expenses Only When There Has Been A Material Change in Circumstances

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Divorce litigants in Massachusetts may not clearly understand the distinction between those provisions in a Separation Agreement regarding child support and those provisions regarding the payment of the child(ren)’s expenses. Both types of provisions are merged into the Judgment of Divorce, meaning that the court can modify them in appropriate cases. Generally speaking, the standard for modifying a child support order is that there must be “an inconsistency between the amount of the existing order and the amount that would result from the application of the Massachusetts child support guidelines.” M. G. L. c. 208, § 28. In contrast, the standard for modifying any provisions about payment of a child’s expenses is that there must have been a “material change in circumstances” since the entry of the judgment that is being modified.

The two standards, although similar, are not the same, as demonstrated by the recent case of Feinstein v. Feinstein . In Feinstein, the parties divorced and executed a comprehensive Separation Agreement regarding custody and the expenses of their children. The Agreement provided that the parties would pay for their children’s college costs first from scholarships or educational accounts, and the remainder would be paid 55% by the father and 45% by the mother. Several years later, when one of the children reached college-age, he chose to attend a school other than the one his father worked for, where his tuition would have been free. The father thereafter refused to contribute 55% of the child’s college costs. On cross complaints for contempt, the Probate and Family Court judge found that the child’s decision to attend college at full cost had an impact on the father’s ability to pay. She therefore ordered the father to pay only 55% of the cost of tuition and room and board for the University of Massachusetts, rather than 55% of the child’s actual tuition cost.

The Appeals Court confirmed that the Probate and Family Court did have the authority to modify the father’s obligation regarding college expenses on a Complaint for Contempt. However, it ruled that because the modification entered was related to the child’s college educational costs – and not to a child support order – the lower court erred in modifying the father’s obligation without first finding that a material change in circumstances had occurred since the entry of the original Judgment.


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