Massachusetts Divorce and Family Law

Can You Avoid Facing a Complaint for Contempt During the Economic Crisis?

Posted on January 20, 2010 by Gail Otis

The Massachusetts Probate & Family Court divisions are busier than ever as a result of the current economic crisis. The economic downturn has taken a heavy toll on families already struggling to make ends meet. It is unfortunate, therefore, that some payors may attempt to use the crisis to avoid their support obligations. For most who are making a good faith effort to provide support, however, the economic crisis is a very real hardship, and meeting support obligations has become difficult or impossible when faced with the loss of a job or an unexpected reduction in income. If you are someone who is making a good faith effort to meet your support obligations by seeking re-employment or additional work, then there are some steps you can take which may avoid the filing of a complaint for contempt against you. If a complaint for contempt is filed against you, it is possible that you may not be found in contempt if you can show the Court that you are making your best efforts to meet your support obligations.

File a complaint for modification immediately upon losing your employment or experiencing a substantial reduction in your income

Filing a complaint for modification is the first step toward obtaining relief. The court has the authority to order retroactive relief back to the date of the service of the complaint for modification upon the other party; however, keep in mind that retroactive relief is not automatic, but is subject to the court’s discretion. In addition, generally the court will not issue a temporary order reducing support in a modification action unless there is an emergency – but be aware: many courts no longer consider a loss of job or reduction in wages, by itself, an emergency which warrants a reduction under temporary orders. In short, the sooner you file for the modification the sooner you may get relief, but doing nothing will likely only result in having to face a complaint for contempt.

Keep Looking for Work and Document your Job Search

Every judge is different when it comes to what he or she will consider to be a good faith effort to find work. The more you do to look for work, the more likely your efforts will be viewed in a positive light. It is also wise to maintain a job log or journal to keep track of your efforts. The log should include detail about the job to which you’ve applied, the date the application was made, with whom you spoke or had communications, etc. In the event your case must go to trial, it will be helpful to have such documentation as evidence to substantiate your own testimony. Also, maintain a paper trail of the jobs you have applied for as well as what the ultimate result was of the application. Avoid “passive” job searches; for example, do not rely on internet sites such as Monster.com and Careerbuilder.com to do the work for you. If you are receiving unemployment insurance benefits through the Commonwealth of Massachusetts, then you are already required to submit three job applications per week. Also, take advantage of the career counselors provided by the Commonwealth of Massachusetts, One Stop Career Centers. Be an active player in your job search. Make cold calls, use networking contacts when submitting your applications, and follow up on all applications you have submitted. Send thank you notes (and keep copies) for all interviews, even if the interview was merely informational. Make sure all of this is documented in your job search log.

Pay what you can

A party who makes an effort to pay something, even a partial payment, for their support obligations will likely be considered as trying to make a good faith effort to abide by the current court order. Keep in mind, however, that if you are paying through DOR, interest and penalties will accrue for any deficiencies in your child support payments. If you pay something, that amount will be credited but interest and penalties will accrue on the unpaid amount.

Take a look at your lifestyle

Are you still dining out a lot and/or going to fancy restaurants, are you buying expensive products (such as computers, electronic items, jewelry, vehicles, etc.) and taking vacations? When a party claims that they cannot afford their support obligations, but they can continue to live a higher lifestyle, their protestations will appear insincere to the support recipient as well as to the Court. Remember, the support recipient is going to be less likely to work with you toward a temporary reduction in your support obligation if you are still, for example, attending Bruce Springsteen concerts and traveling to London. Reduce your spending and use that money to pay what you can toward your support obligation.

Although every party has a right to file a complaint for contempt, and the steps above may not prevent the support recipient from filing one against you, if you take the steps outlined here you may be able to show the Court that you are making an effort to pay your obligations and to find work. If the Court agrees, you may find that your support obligation is reduced and that you will not be found in contempt.

Written by Katie L. Lenihan, Esquire, associate attorney at Otis & Associates, P.C., and edited by Gail P. Otis, Esquire.

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Mistakes to Avoid in Divorce

Posted on July 30, 2009 by Gail Otis

Whether you found a divorce attorney’s business card in your spouse’s pocket, or have just been handed a complaint for divorce by a constable, there are common mistakes that are often made but which should be avoided.

Ignoring the situation can cause irreparable harm

Often, a person will receive the Complaint for Divorce and become so devastated, or just flustered, that they choose to ignore it. This is the first mistake, because once you are served with a Complaint for Divorce two things occur:

A. You are immediately subject to an Automatic Restraining Order on assets. What does this mean? It means that you and your spouse are prohibited from selling, giving away, hiding, or in any way disposing of any and all of the marital assets. This means you cannot clean out the bank accounts by closing the accounts to transferring all the money out to another location, you may not cash in the stocks, give away or spirit away the electronics or furniture, nor hide the car. You are permitted to use your financial assets (bank accounts, cash) to pay the expenses you incur in the usual course of daily life – such as your utilities, cable and telephone bills, mortgage or rent, etc. If your spouse has used marital funds to retain an attorney, you may also use marital funds for the same purpose. The amount you use should be of a similar amount as that used by your spouse. This is important to understand: any and all assets held in your name or your spouse’s name, regardless of location or when and how acquired, are considered marital assets for the purpose of the divorce, until agreement of the parties or decision by the court.

B. If you have been served with a complaint for divorce, or if you believe that you soon will be served, it is in your best interest to begin to prepare. For example, your attorney will need specific records for your case and you should begin to make photocopies of relevant financial documents such as income tax returns, bank statements, retirement statements, stock statements and even your spouse’s paycheck stub. This is especially important if you were not the one who handled the finances during the marriage. It is also wise to collect copies of monthly bills which will assist your attorney to help you prepare your financial statement – required by all parties in divorce actions. Be sure to bring these documents, and any documents you have been served with, when you consult an attorney.

C. The Probate and Family Court rules require that a party file an answer to the Complaint for Divorce within 20 days of being served. Although a Motion to File an Answer Late is generally allowed, you could potentially harm your case if you do not file an answer, and a counterclaim for divorce if appropriate, within the 20 day timeframe. It is very important that you contact an attorney as soon as you are served in order to be sure that you are not missing any important deadlines.

Do not become confrontational with your spouse

Whether or not there are children in the home, it is never a good idea to become confrontational with your spouse after learning that he or she wants a divorce. It is a sad fact of divorce that some people have sought and have obtained unwarranted restraining orders, even on a short term basis, against their spouse to try to gain an advantage in the divorce matter, particularly if child custody is in dispute. Of course, if your spouse becomes confrontational with you and you are in fear of physical harm by your spouse, you should call 911 without delay. In light of the current economic downturn, however, in the absence of abuse it is not uncommon for parties to continue to live together during the divorce.

Remember “whatever you say or do can and will be used against you.”

There are so many ways a person can harm his/her case even before it goes to a judge. Sometimes, in an attempt to save the marriage, a party may promise to change and will agree with whatever their spouse says about them in order to try to save the marriage. There is an old saying that goes “admit nothing, deny everything.” When the differences in a marriage reach the point where divorce is seriously considered, or has been filed, reconciliation is uncommon. Although a Massachusetts law does not allow private conversations between spouses to be used in Court, the law does not prohibit the use and disclosure of conversations by email, text message, voice mail message, or when there are others present during the conversation. In addition, if your case involves a dispute over the care and custody of children, and a Guardian ad Litem (“GAL”) is appointed to investigate these issues for the court, all conversations can become part of the court record through the written GAL report that will be filed with the Court and provided for the attorneys for each party.

Speaking about GALs, remember that the things you say or do that seem fine in the presence of the children when your marriage is intact may not be acceptable when you are going through a divorce. If custody becomes an issue during your divorce, and a GAL is appointed to investigate who the children should be with, and/or how much time each parent should have with the children, your actions and words may come back to haunt you. You may not think it will happen to you, but it is always better to be safe than sorry. Also, keep in mind that your children are most likely quite upset about parents divorcing, so do your best to keep your children out of the divorce.

Another very important point to remember in this digital age – the internet is full of useful as well as harmful information. As divorce attorneys, we always caution our clients to avoid putting their personal information on websites such as Twitter, Myspace and Facebook. If you have already established accounts on these sites, we recommend that you review the content to be sure that there is nothing that you would cause you harm, or cause your children or family harm, if revealed during your divorce. Chances are that your spouse’s attorney will do a Google search using your name, so don’t give them additional material to use against you.

The above are just a few of the issues to be aware of, and mistakes to avoid, when you find yourself in a divorce. Other issues may, and will, arise during the divorce, so be sure to find a competent, experienced family law attorney to guide you through the process and to work with you.

This post written by Katie L. Lenihan, Esquire, associate attorney at Otis & Associates, P.C., and edited by Gail P. Otis, Esquire

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Leaving the Home Does Not Mean Giving Up Your Interest

Posted on July 14, 2009 by Gail Otis

When parties decide that their marriage is over, oftentimes the question arises, “who is going to move out?” There is a common misconception that the party who moves out of the home is giving up her/his right to that home, or to receive money from her/his interest in the home. The result may then be that both parties refuse to move out of the home, which creates an uncomfortable and sometimes hostile environment for both parties and the children. If tension increases, one party may seek an order to have the other ordered out of the home. In extreme cases, a restraining order (often called a “209A”) may be sought in an effort to force one party to leave.

There are many reasons why it might be in a party’s best interest to leave the home; however, in choosing to leave, a person does not give up their right to their interest in the property. Under Mass. General Laws chapter 208, section 34, marital assets are divided by the court in an equitable manner. Equitable, however, may not necessarily mean equal. What it does mean is that even though a party has left the home, temporarily or permanently, that person still has a claim to the equity in that property, meaning the net value of the home after deducting any mortgages or liens on the home.

Another reason a person may not want to leave the home is that she/he wants to remain in the home following a final divorce. Again, making the decision to temporarily move out of the home does not preclude a party from asking the court to allow that party to buy out the other party at the conclusion of the divorce, or from negotiating with the other party for such a result. It is important to remember, however, that a court will typically allow the parent with primary custody of the children to remain in the home during the divorce proceedings in order to provide the children with some stability. In addition, as part of the final judgment a Court may allow the custodial parent to remain in the home for a period of time after the divorce, thus postponing the time when the parties divide the net equity in the home.

This post written by Katie L. Lenihan, Esquire, associate attorney at Otis & Associates, P.C., and edited by Gail P. Otis, Esquire.

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Removal of Children from the Commonwealth

Posted on July 8, 2009 by Gail Otis

After a divorce judgment has been entered in a case, the children of the couple remain subject to the authority of the court so long as they live in the Commonwealth. Because of this, when a custodial parent seeks to move out of the Commonwealth with the children, and cannot get consent from the other parent, the custodial parent must seek approval from the court in what is called a removal proceeding. In making its decision, the court will consider several factors in an attempt to determine whether removal of the children should be allowed.

In what has been called the real advantage standard, the judge is required to make two specific findings before a child may be removed from the state. First, the judge must find that the custodial parent has a legitimate and sincere reason for wanting to leave the state. The courts believe that the quality of life of children after divorce is intertwined with the well-being of the custodial parent and so the custodial parent’s interests are relevant to the well-being of the children. In making the determination as to whether there is a sincere reason for the move, a judge may consider the social, emotional, and economic advantages to the parent. The custodial parent cannot be solely motivated by a goal of disrupting the non-custodial parent’s relationship with his or her children. Mixed motives may be acceptable so long as the main reason is to improve the quality of life of the custodial parent and, thus, the children.

The judge must also determine that the move will be in the best interest of the children by considering whether their quality of life will be improved by the change, taking into account the possible adverse effects to the children’s relationship with their non-custodial parent. The fact that visitation with the non-custodial parent will likely change is not a controlling factor in the determination but will be assessed in addition to the reasonableness of alternate forms of visitation. The negative effects of being away from one parent may be outweighed by the possibility of strengthening relationships with supportive relatives such as grandparents or aunts and uncles.

In the past the courts have considered that requests to move that are based on job offers, new marriages, or to be closer to family were, usually, a real advantage. Some non-custodial parents have sought a change in custody based on the custodial parent’s request for removal. The Court has held, however, that the mere fact that a request for removal has been made is not, itself, sufficient reason to change custody. The non-custodial parent seeking a change in custody must show a material and substantial change in circumstances aside from the other parent’s request to move.

If you are seeking to remove your children from the Commonwealth, or if the other parent is seeking to do so, you should consult a family law attorney.

Written by Vanessa St. Leger, NUSL 2010, who is enjoying a co-op in family law with Otis & Associates, P.C. this summer. Edited by Gail P. Otis, Esquire.

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Alimony duration

Posted on June 19, 2009 by Gail Otis

The Massachusetts Supreme Judicial Court has heard arguments in a case and will decide an issue which may result in changes to future decisions regarding alimony. As written, the alimony statute does not require a termination date of payments to a former spouse unless expressly stated in the divorce agreement. Alimony orders issued by the Court are essentially in effect until a spouse’s death or until the party receiving alimony remarries.

Arguments in the case, Rudolph Pierce v. Carneice Pierce (SJC No. 10381) heard in May 2009, pivot on the question whether an ex-husband can seek termination of alimony payments to his ex-wife upon entrance into voluntary retirement. The Pierces married in 1967 and divorced in 1999. Their separation agreement required the husband, Rudolph, to pay $110,000 yearly to his ex-wife, Carneice. At the time of their divorce, Rudolph worked as a litigation attorney with an annual income of $452,515. Carneice at the time made $40,376 annually. At the Probate Court level, Judge Leilah Keamy reduced the amount the husband had to pay in alimony but did not eliminate it. The plaintiff’s brief argues that as of his retirement in April 2008, he no longer receives an income whereas his ex-wife voluntarily quit a $95,000-a-year job despite the fact that her current expenses are roughly double those of her ex-husband, and 60% higher than they were at the time of the divorce.

The issue of post-retirement alimony has been a contested one amongst practitioners for years. A ruling in favor of the husband, some argue, would be a major public policy shift. A task force of the Massachusetts and Boston Bar Associations is finalizing recommendations on how to best ensure “consistency and predictability” in alimony awards. The MBA in June endorsed the creation of a general presumption of alimony termination at retirement. The final decision, however, still remains in the hands of the court.

This post written by Vanessa St. Leger, NUSL 2010, who is currently enjoying a co-op in family law with Otis & Associates, P.C. Edited by Gail P. Otis, Esquire

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Surviving Divorce

Posted on March 9, 2009 by Gail Otis

Going through a divorce is difficult at any time, but has become even more so as a result of the many problems that many face in this recession. Perhaps the most difficult to resolve is what to do with the former marital home if there is no equity due to the downturn in the real estate market. Because there is no easy answer to this, many couples are trying to be creative in order to preserve their investment. Some are agreeing to postpone sale of the home until the market improves, which usually means that one party, and typically the children if any, remains in the home until it is possible to list the home for sale.

Another effect of the recession is the loss of jobs, and the resulting increase in the filing of complaints for modification to decrease child support obligations, and/or alimony obligations. Child support is modifiable and many divisions of the Massachusetts Probate & Family Court have reported increases in these actions. Whether an alimony obligation is modifiable depends upon the terms of the divorce or separation agreement. It is advisable to review your agreement and to seek the advice of counsel to determine whether modification is possible.

For those who would like to proceed with a divorce despite the financial difficulties that many face, there are options: mediation and collaborative process are two options in addition to filing a contested divorce action. Mediation will typically be a less expensive process than litigation. Collaborative process is often less expensive than litigation, but not always so. In collaborative process, the parties and their counsel sign an agreement not to file anything with the court and to work together to resolve their divorce in a way that benefits the family as a whole. If the process breaks down, and either party seeks to litigate, both parties must retain new counsel. For a review of collaborative law, visit the website of the Massachusetts Collaborative Law Counsel, at www.mclc.org.

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Recession Affects Divorce

Posted on December 4, 2008 by Gail Otis

For many, the effect of the economic downturn became apparent one year ago as people saw their monthly expenses skyrocket due to the increases in the cost to put gas in the family car, to put food on the family table, and to pay the home utilities. Most consumer goods increased in price, as distributors passed on their increased fuel and shipping costs. In addition, for those lucky enough to have employer-provided health insurance, annual premiums also increased considerably – further shrinking net pay and adding considerably to one’s daily stress level. As is not uncommon, families already experiencing financial difficulty may have been squeezed beyond their ability to survive, and home foreclosures are on the rise.

I recently spoke with an attorney who felt she had done everything she was supposed to do – she saved her money and bought a house, put savings into the house with the goal of increasing the energy efficiency, she updated the bathroom, installed air conditioning, and installed new windows. Over the years she has maintained the yard herself to save money, which meant that she dedicated a large portion of her weekend time to this chore since her daily commute had her returning home on weekdays at approximately 9:00 p.m. and there was no time until the weekend. In addition, she often goes into the office on weekends to complete work for which she was unpaid, because the workload never seems to decrease. She feared losing her job, and her health insurance, because she has a chronic health problem which requires costly care and medical supplies. She is now facing the possibility of layoff, however, because her company is failing in this economy, and employment prospects in her area are dismal, at best. If she falls behind on her mortgage payments, however, her financial circumstances render her ineligible for any assistance and thus she faces the possibility of losing her home as well. If one can say that this person is fortunate, it would only be because her single status means that she is not at risk of having her marriage affected.

Difficult economic times frequently result in increased divorce filings. Yet, some geographic areas have seen divorce filings decline because people cannot afford to live separately, and/or the marital home cannot be sold. This was recently reported in article on MSNBC.com. If one were to believe the “experts,” we are in for a long run of difficulty, perhaps well into 2010, before the outlook improves.

If you feel that it is not feasible to remain in the marriage, there are alternatives you may wish to consider which may enable you to divorce for less than the hundreds of thousands of dollars, or even less than the tens of thousands of dollars which a contested divorce often costs. If you and your spouse are motivated to proceed with divorce, then it would be wise to consider mediation or the collaborative law divorce process. When couples mediate their divorce, they jointly retain a mediator who assists the parties to come to the table to try to resolve the issues in their divorce. While parties may often feel empowered because they have considerably more involvement in crafting the result, not every case is appropriate for mediation (such as cases involving domestic abuse). With mediation, It is recommended that each party retain an attorney to review the agreement for them and assist with revisions. Even under these circumstances where each party retains an attorney and the parties jointly retain the mediator, the process can often be considerably less costly than a contested divorce action.

Collaborative divorce requires parties to agree to retain counsel who have been trained in the collaborative process, and to further agree that neither party nor counsel will file anything with the court during the process. In the event that the collaborative process breaks down, the parties are required to retain new counsel as their collborative counsel will not represent them in a contested action. During the collaborative process, the parties and their counsel produce documentation and information voluntarily and all work together to seek a resolution which is beneficial for the family, as opposed to the contested divorce which is highly adversarial and often does not focus enough attention on the children. If there are special issues, such as difficult financial issues, psychological or medical issues, or children or parties with special needs, the process permits other professionals to be brought in to assist, but these professionals often will charge only on an hourly rate for the time they are involved.

Both mediation and collaborative law may result in a divorce process which is less traumatic, less costly, and allows the parties to feel more involved in the details of their divorce agreement and to craft a result that the family can hopefully live with for some time to come. In this difficult economic climate, why not utilize a process that reduces the harm, financially and emotionally, on the family? For more information on the collaborative law divorce process in Massachusetts, visit www.massclc.org.

There is no easy solution for the downturn in real estate values and the fact that some couples may now owe more than their property could sell for in this market. Some couples have agreed to divorce, but remain living in the home, as co-tenants, until such time as the market improves and the property can be sold without loss. If one party wishes, or is willing, to remain in the home until the market improves, there may be an agreement to defer listing of the home if that party can carry the mortgage and monthly costs.

As families face difficulties, the Courts will also become even more overwhelmed by difficult cases with no easy solutions. Tough economic times can sometimes result in tremendous creativity, and if cooperation is possible, the family as a whole may benefit. If you are considering a divorce, also consider alternatives to contested divorce, such as mediation and collaborative divorce.

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Can my stimulus check be taken for child support?

Posted on September 15, 2008 by Gail Otis

In an article dated September 9, 2008, Boston.com reported on the interception of economic stimulus checks in cases where a parent owes child support. According to the Article, states submit the Social Security numbers of deadbeat parents to the IRS, and the numbers are cross checked against taxpayers who will be receiving checks. If it is determined that a taxpayer owes support, the checks are sent directly to the state. In Massachusetts, you have 180 days to file an appeal if you believe that your check has been intercepted in error. In other states, the checks may be held for a different length of time.

As for the parent to whom the support is due, the article advises,

“If the appeal is denied, the money is turned over to the parent who has custody — in most cases, the mother — unless she has been on public assistance, in which case the funds can go back to the state and federal government to reimburse the taxpayers.”

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What should I do if I am served with “divorce papers?”

Posted on September 8, 2008 by Gail Otis

Service of divorce papers means that someone, typically a constable, has handed you documents filed by your spouse. The documents usually include a copy of:

the complaint for divorce
a summons
a blank financial statement
a tracking assignment which indicates who your judge will be, and
information about a rule which prohibits you and your spouse from transferring, selling, or otherwise disposing of marital assets during the divorce and until it has been resolved.

There may also be a Motion for Temporary Orders included, with notice of the date, time and place of the hearing for the motion. Temporary Orders can be agreed upon by parties or decided by the Judge. These Orders, once established, usually remain in place for the duration of the divorce proceedings, until the divorce is concluded by Agreement or by trial. It is very important, therefore, to be certain that your requests and/or concerns are presented at the hearing. A Motion for Temporary Orders often addresses the following issues/requests, and can include others as well:

who has legal and physical custody of the minor children, if any;
whether child and/or spousal (alimony) support is paid and, if so, how much;
who maintains health, dental, and life insurance for the benefit of the other party and children and who pays for it;
who gets to use the former marital home during the divorce and who pays the expenses;
a parenting plan for each parent to spend time with the children;
who must pay for the extracurricular costs/activity expenses of the children; and
who must pay for the uninsured medical/dental expenses of each party.

Within twenty (20) days of being served, you are required to 1) file an answer to the Complaint, in which you respond to each allegation made by your spouse in their complaint, and 2) serve a copy of the answer to your spouse’s attorney or, if your spouse is not represented by an attorney, to your spouse.

If you, too, wish to seek a divorce, you are required to file your counterclaim, at the same time that you file your answer to your spouse’s complaint. In your counterclaim, you must set out all factual data in separate paragraphs, as well as the legal basis for your counterclaim and the relief you are seeking from the Court. The answer and counterclaim are contained within the same legal document. Both must be served upon your spouse’s attorney or your spouse, if s/he is unrepresented.

You may also wish to file your own Motion for Temporary Orders, as indicated above, in which you request specific Orders from the Court. Again, once put in place, these are Orders that both parties and the family, if there are children, must live with for the duration of the divorce proceedings. It is always advisable to seek advice from an experienced family law attorney upon receipt of divorce papers and certainly well in advance of any hearing scheduled in your case.

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Enforcing your divorce agreement

Posted on August 14, 2008 by Gail Otis

If your spouse was ordered to pay you alimony, child support or for other expenses, or to allow you access to your children, and has not done so, then they may be in contempt. You must first review the Court order or judgment to determine if there are grounds for you to file a complaint for contempt against them. Such a complaint may be filed to force the other person to follow the order from the Court.

It may mean that you will be able to collect support owed to you, sometimes with interest, or expenses which should have been paid but have not. If visitation with children has been denied, the other parent will usually be ordered to cooperate and allow visits. In a complaint for contempt you are permitted to request that your attorney’s fees be paid, if the other person is found in contempt. You should speak with your attorney about whether collection of fees is appropriate or possible in your case.

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