Enforcment of Massachusetts Family Court Orders: How to make the other party do what they’re told

The Massachusetts Family Court has the authority to order parties – to numerous types of court proceedings – to do certain things. For example, a Temporary Order might order one party to pay child support to the other, or a Divorce Judgment may set a clear visitation schedule. A Judgment upon a Complaint for Modification might order the opposing party to pay a different amount of child support then previously ordered, or the Modification Judgment might change the previous terms of the parenting schedule. In all of these court orders, it is imperative that the party that is ordered to do something complies with the Massachusetts Family Court’s order. However, what does a party do if the ordered party is not in compliance with the Massachusetts Family Court Order? In this blog post, we examine the remedies and options available to the grieved party when the opposing party fails to comply with the Massachusetts Family and Probate Court’s order, and what strategies may work to force the opposing party into compliance.

THEY’RE NOT COMPLYING: NOW WHAT?

There are a few options available to force a party to comply with a court order in Massachusetts. First, you should reach out to the opposing party – either through your attorney or on your own – and determine why they are not in compliance with the Massachusetts Family Court’s order. In some instances this contact may force them into quick compliance, and will also give you insight into why the other party has delayed his or her compliance with the Court’s order. Often times, however, the other party will not so easily fall into compliance and further, more drastic measures must be taken.

If the initial communication with the non-compliant party does little to get said party into compliance, the grieved party may be forced to retain counsel to draft and proceed with a Complaint for Contempt. A Complaint for Contempt in Massachusetts is used when a party is not in compliance with a court’s clear order. It is the only tool available to bring the non-compliant party before the court and to force the non-compliant party to explain why they are not in compliance with the Massachusetts Family Court order. A draft of the Complaint for Contempt, along with a strongly-worded letter, should be sent to the non-compliant party prior to the filing of the Massachusetts Complaint for Contempt. The letter should indicate that the non-compliant party has 10-days to bring himself into compliance, or alternatively, to reach out to the opposing party with his/her game-plan moving forward. The non-compliant party should be warned that failure to respond to the letter within the short deadline will force the grieved party file the Complaint for Contempt. The letter should also inform the non-compliant party that the grieved party will not only seek full compliance with the Massachusetts Family Court Order, but that the moving party will also seek reimbursement for missed work, as well as Attorney’s fees.

CONTEMPT HEARING: BURDEN FALLS UPON THEE

Unlike other Massachusetts’ contempt hearings, in the Massachusetts Family and Probate Court, the burden of proving that the defendant is in Contempt falls upon the defendant. Pursuant to Massachusetts’ statutory language, the defendant has the initial burden of showing – through a preponderance of the evidence – that the defendant is not in violation of the court order, or alternatively, that the defendant has not complied with the court order, but has done so because he does not have the ability to comply.

Sadly, many courts will still place the initial burden upon the plaintiff to show the defendant has the ability to comply with the court order; however, the statute placing the burden upon the non-compliant is clear and unambiguous.

If the court finds that the defendant is in contempt of court for failure to abide by the court’s order, there are many remedies available to the court. The Massachusetts Family and Probate Judge has the authority to incarcerate the defendant until the defendant becomes compliant with the court order, the judge may also give the defendant a short amount of time to become compliant, and to set a short review date to closely follow the defendant’s road to full compliance with the court order. However, the judge may not – under any lawful circumstance – modify the underlying court order in a contempt proceeding. If the defendant wants to change the terms of the previous court order, the defendant must file a Complaint for Modification.

Finally, contempt proceedings are often times quite confrontational. Emotions run high, and with the possibility of incarceration, the stakes are extremely important to all involved. Both parties should be well-prepared, and should explain their cases clearly and concisely. Any outside evidence that you may have to prove your case should be brought before the court, and presented to the other side prior to the hearing. Massachusetts Family Court orders are meant to be followed, not ignored or otherwise disregarded.

Attorney Anthony Rao has handled thousands of contempt proceedings before the Massachusetts Family and Probate Court. He has successfully enforced thousands of Massachusetts orders and judgments, and is agreeable to numerous types of retainer agreements to better fit his client’s resources . He may be reached at anthony@lawrao.com, or at 617-953-0836.

Massachusetts Department of Revenue Child Support Enforcement Agency: They’re taking my license, now what?

As a former Child Support Enforcement Attorney for the Massachusetts Department of Revenue, I am all too familiar with the short-comings of an Agency empowered to insure that all the children of the Commonwealth are supported – to the largest extent possible – by their parents.  Indeed, custodial and non-custodial parents, on a daily basis, complain of the inefficiency and red-tape that seems to hamper the DOR in establishing, modifying, and enforcing child support orders in the Commonwealth.  However, with all of their short-comings, the DOR has an exceedingly undeserved poor reputation.  In this piece, we look to provide answers to the simplest of questions: What can the DOR do, and what is the best way to stop it!

The DOR has been given vast powers under Massachusetts General Laws Chapter 119A.  The DOR can suspend an individuals driver’s license, levy their bank accounts, intercept tax refunds, garnish wages, suspend an individual’s passport, and put liens on a person’s real property.  I have been a personal witness to all such actions.  However, with each of these powers, comes internal regulations and policies.  Most attorneys and lay-persons do not understand how these enforcement powers work, and most importantly, how they can be stopped.  As a former DOR attorney, I know that each of these actions can be delayed, and in most instances, completely side-stepped by one simple method: being proactive!

To know the DOR is to love it! Well, maybe not.  But one must not be intimidated by the agency, or its vast powers.  When an individual, who has a child support order, is having difficulty in not paying their child support obligation – even for one week – that individual should immediately contact the DOR.  Most people will contact the 1-800 number that is provided by the DOR on its website.  This, however, is a horrible decision, that will most certainly cause more delay, more stress, and be almost completely unproductive.  So who should a person contact when they are facing the possibility of the falling behind on their child support, or even worse, losing their driver’s license?  The answer is short and sweet – your DOR case worker.

Every custodial and non-custodial parent has an assigned case worker at the DOR.  This case worker is assigned by the last the name of the non-custodial parent.  The case worker is the “manager” and direct-contact for your case.  They are in charge of all of the enforcement powers used on your case.  The DOR case worker has almost complete authority in determining whether or not your license will be suspended, if you may have your license reinstated, and their willingness to work with you is a critical part in solving the DOR puzzle.  How do I contact my DOR case worker?

The DOR case worker is located in a DOR Regional Office.  For example, if you have a child support order out of Essex County, your case worker would be located in the Northern Regional Office.  This office has a direct number.  Call the direct number and ask to speak to your case worker. The case worker will ALWAYS work with you – not against you.  They are not in the business of making money; they do not work on commissions; they do not get bonus points for taking away your license.  They are their to help, and they are their to assist in collecting child support on behalf of your child.  They do not find joy in ruining someone’s life, although you may certainly feel like they do.  Indeed, the vast majority of DOR workers and staff are reasonable individuals that are simply using their best efforts to make certain the children of the Commonwealth are supported by their parents.  They are not a debt collection agency – they are not nasty and mean.   Reach out to your case worker – and explain your situation – they will listen and do their best to help you – most of the time.

Retaining the services of an attorney with first-hand knowledge of the DOR – and an attorney who is advocating on your behalf – is very useful.  For example, if you do manage to contact your case worker at the DOR, the DOR case worker will record – from their own memory – notes from your conversation.  All of these notes are printed and placed into your file.  Subsequently, when your case is brought before the court for a contempt action (for failure to pay support, where you may face the possibility of jail time up to 179 days) the DOR attorney may very will use these notes to indicate to the judge what you have previously asserted to the DOR.  This is why having an attorney who understands the child support laws of Massachusetts, and what should and should not be admitted to the DOR,  is crucial in achieving a great outcome for all parties involved – including your children!

Finally, I have seen so many cases where the non-custodial parent did not have the financial means to pay a high child support order, and that individual simply ignored the order entirely.  And when I say ignore, I mean did not make any payments.  This, by far, is the worst thing to do, and will almost guarantee a jail sentence! If you cannot afford your Massachusetts Child Support Order, retain an experienced Child Support  Attorney to file for a modification to have your child support order lowered.  But even more importantly, pay something every week — even if it’s $20.00.  This will not only show your good faith effort to your DOR case worker, but will also be evidence in a future contempt case that you are making some sort of effort.  An individual who has paid something every week will certainly appear to be more credible and honorable than a person who has done nothing.  So do something!

I am here to help you navigate this maze, and to make certain your rights and your children’s rights are protected!

 

 

Too much, too little: Modifying Child Support Orders In Massachusetts

In Massachusetts, most parents are unsatisfied with their current child support order.  It is widely believed that non-custodial parents pay too much, while custodial parents receive too little.  Therefore, the question often becomes:  How do I change my child support order in Massachusetts?

There are certain factors to consider when thinking about changing your Massachusetts Child Support order.  Here are the steps everyone should take when considering a request to change their current child support order in Massachusetts:

(1) Before pursuing litigation — Use the Massachusetts Child Support Guidelines to estimate what your current child support order should be.

All too often people assume that their child support payment is too high or too low.  They run into court and ask for a change.   However, the parties have not completed an updated Child Support Guidelines Worksheet, and are entirely unprepared to make their request.  In fact, the parties generally have no idea what their child support order should be, other than it should be changed.  This is a huge mistake.  Decisions made on emotion and intangible factors are not going to assist one in making sure their best interests are met.

The Massachusetts Child Support Guideline Worksheet is relatively easy to complete, and will give any party a very good idea of what to expect at a court hearing.  Speak to an experienced child support attorney at the Rao Law Offices to assist as you as you prepare to modify your current child support order.

(2) Determine what has changed since the most recent order.

One cannot go back into Court and ask for a change in child support just because they want an increase or a decrease.   Under Massachusetts law,  one may only seek a modification of their current child support order if there has been a significant change in circumstance.  For example, if the non-custodial parent has been laid-off from work since the order entered, this would be a viable reason to go into court and ask for a reduction in child support.  Also, the custodial parent could go back into court and ask for an increase if the custodial parent’s income has substantially decreased.  There are many reasons as to why one’s current child support order should change.  Contact Attorney Rao today at 617-953-0836 to discuss your options.

Finally, there is one exception to the “change in circumstance” standard.  Under Massachusetts Child Support Law, one is entitled to go back into court every three years to have their child support reviewed by the court.  Therefore, even if there has been no “change in circumstance” the child support order may still be changed if the order is three-years or older.

(3) Determine if the Last Court Order Was a “Judgment” or a “Temporary Order”

In most instances, your last court order is going to be a Judgment.  This means that the initial matter (whether it be a Divorce, Modification, or a Support Complaint) has been finalized.  In this instance, you would need to file a “Complaint for Modification.”  In order to file a new “Complaint” one must file the Complaint and have the Complaint served by a Constable or Sheriff.

However, in some instances, a Temporary Order will still exist in your case.  In this instance, you may already have an upcoming court hearing to address all of the underlying issues in your case.  Further, there are certain circumstances where the Court never entered a “Judgment” in your case, but for whatever reason, did not order a review.  In this instance, you can simply draft a “Motion.”  This does require service by a Constable or Sheriff.  Rather, you must send the Motion via certified mail to the other party.

(4) Be Proactive — You are not entitled to a Retroactive Modification

One must be proactive in their pursuit for a modification of their current child support.  I have handled hundreds of child support cases where the non-custodial parent had been laid-off for years, but failed to go into court and ask for a reduction in child support.  The end result is the non-custodial parent owes thousands and thousands of dollars in back child support without the ability to pay.  The lesson here is an easy one: you cannot sit back and wait for the “system” to come to you.  You must take action as soon as your situation changes.  You must be proactive.  Under Massachusetts Law, one is not entitled to a retroactive modification.

If you are thinking about a modification of your current child support contact an attorney at Rao Law Offices at 617-953-0836.

 

Massachusetts Child Support: When does it end?

It is common belief — at least for those who have never had to deal with the issues of child support — that child support obligations terminate upon a child turning the age of 18.   While it is true that under certain circumstances a child support obligation will terminate when the youngest child reaches the age of majority, in Massachusetts a parent may receive child support up and until their youngest child reaches the age of 23.  Indeed, there is no other state or jurisdiction within the United States that allows for child support to run for so long.  Whatever your personal opinion on the possible length of child support in Massachusetts, understanding  the framework and logic behind court ordered child support payments will help you better be prepared for any future court proceeding, and will allow you to have the knowledge you need to navigate this most important area of Massachusetts Family Law.

There are two controlling statutes that govern Massachusetts Child Support:  Massachusetts General Laws Chapter 228, Section 28 (for the children of married parties), and Massachusetts General Laws Chapter 209C, Section 9 (for children born out of wedlock).  Both statutes — while not identical in language — are identical in all respects with what the statutes require.  Indeed, it is violative of both federal and state law to treat children born out of wedlock differently than children born of marriage.  These two statutes set clear parameters as to the how long child support should run.  However, the statutes alone are not the only essential read to understand the Massachusetts Child Support laws.

The Massachusetts Child Support Guidelines, revised and updated in 2009, are a must read for anyone who is involved in a child support case.   A substantive document with explicit rules on child support in Massachusetts, the Child Support Guidelines give guidance to practioners and litigants on all aspects of child support in Massachusetts.   For example, the Guidelines give the judges of the Probate and Family Court guidance on how to appropriate income from a secondary job, or income from a parent who is working overtime.  Further, the guidelines give guidance to the Family Court on how to handle unreported income, or attribution of income if a parent is underemployed.  The Guidelines are full of substance, and are an essential read for anyone dealing with the frustrating issue of child support.

The Guidelines, however, do not explicitly deal with the issue of termination of child support.  Rather, the legislature left this to statutes.  Massachusetts has three different categories, or three different age brackets with respect to child support.  The first, and most obvious, is any child who is under the age of 18.  The simple rule here is that barring some sort of unusual circumstance, any child under the age of 18 is entitled to receive child support.  There is no need to look into the circumstance of the child, what the child is doing, or what the circumstances are of the custodial parent.

The second bracket is a child who has obtained the age of 18, but has not yet obtained the age of 21.  This bracket is an interesting one.  Under Massachusetts law, a child between the age of 18 and 20 is entitled to receive child support in two circumstances.  The first, and most obvious, would be the traditional situation where the child is enrolled in college.  In this instance, the custodial parent would be eligible to receive child support for the support and maintenance of the child while the child is enrolled in post-secondary education.

There is an important aside to the traditional circumstance where the child moves off to college that should be addressed.  A child who lives away for college — a common occurrence even in a saturated college environment such as Massachusetts  – is still dependent upon his/her parents.  Indeed, the custodial parent must still maintain a room for the child when the child returns to home during breaks and summer vacation.  Accordingly, a child living in dormitories for 9 months out of the year is still entitled to child support payments, and will be until said child is graduated from college or has reached the age of 21.

The third and final age bracket is 21 up to the age of 23.  This bracket only applies to children that are enrolled in a post-secondary education program.  This bracket is similar to age bracket two above, however, it does not include children that are not enrolled in college.  Accordingly, a child that is 21 years-of-age or older in Massachusetts — and is not in college — is emancipated and not eligible for child support, even if the child lives at home is for all intents and purposes is dependent upon the custodial parent for support.

Moreover, a child that is 23 years-old and is on the “7 year” college plan (See the movie “Animal House ” for a better understanding of the “7 year college plan), and accordingly, has not yet graduated from college is nonetheless ineligible to receive child support payments.  In other words, once a child reaches 23 years-of-age in Massachusetts, regardless of their education situation, or their dependency upon their parents for support and maintenance, the custodial parent is no longer entitled to child support payments from the non-custodial parents.

Finally, while these so-called “brackets” are explicitly outlined in the Massachusetts Child Support Guidelines, there is one exception to the termination of child support upon a child reaching the age of 23.  In Massachusetts, the Supreme Judicial Court has concluded in the case Feinberg v. Diamant, that adult children past the age of 23 are nonetheless entitled to support from their parents if the child of said order is dependent upon his parents for maintenance and support.  Therefore, if a child is over the age of 23, yet suffers from a condition (mental or physical) that renders said child dependent upon his parents, the non-custodial parent will be required to pay child support to the custodial parent.