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!