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 email@example.com, or at 617-953-0836.