The SJC, in overturning the lower court decision found that the "no material change in circumstance" finding was not warranted as G.L. c. 208 § 28 merely sets out that "if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines" a modification is warranted. This standard, typically referred to as the inconsistency standard, stands in place of the material change in circumstance standard and permits a modification, if and when, there is an inconsistency in the amount of support to be paid -- regardless of the amount of time that has passed since the entry of the order.
The timeliness argument and finding is interesting. Under the Child Support Guidelines as they are promulgated in the Commonwealth "any child support order less than three years old may be modified only if there has been either (1) a change in health insurance coverage, or (2) a material change in circumstances." In Morales, the lower court found no change in health insurance, and no material change in circumstances in a child support order that was less than three years old --- and yet the SJC overturned the decision because of the inconsistency.
So, how did the SJC rectify the seeming incongruous Child Support Guidelines and G.L. c. 208 § 28? Judge Botsford, writing for the Court specified that the Child Support Guidelines were promulgated pursuant to Federal law, specifically the Family Support Act of 1988. Following the passage of the Family Support Act of 1988, the Commonwealth passed G.L. c. 208 § 28 "to provide that child support modifications would thereafter be governed by the inconsistency standard." The Court found that though "there have been subsequent amendments to Title IV-D that reflect yet additional changes to the Federal legal standard applicable to support order modifications, the inconsistency standard in § 28 has not been amended to take these Federal statutory amendments into account. Accordingly, we are bound to apply the provisions of § 28 as written."
What does this mean for you?
Well, if you are currently paying or receiving child support and you believe that there is a difference between the amount you are paying or receiving and the amount that you should be paying or receiving then you should be prepared to file a Complaint for Modification, even if every other fact applicable to your case is precisely the same as it was when the previous order was put into place.
Modification is often difficult and is almost always highly contentious, as a Family Law attorney I would always recommend hiring a Family law attorney to help you address your Modification concerns and presenting your case. If you would like to speak to me about possibly filing a Modification my contact information is included in the bar at the righthand side of this page, please feel free to contact me at any time.
