WHAT YOU DON’T KNOW CAN HURT YOU. MISCONCEPTIONS ABOUT DIVORCE.
We can save money by both of us using the same lawyer. You and your spouse are potential adversaries in a divorce. This is true even in a divorce that is settled amicably by agreement. The ethical rules that lawyers must follow do not allow a lawyer to represent two people with either actual or potential conflicting interests except in very unusual cases. Such dual representation is never appropriate in divorce cases. You and your spouse each need your own lawyer to look out for your individual rights and interests.
If we agree on everything we will not have to have a trial. Even if everything is agreed to and all the right papers have been filled out, signed and filed, you and your spouse will have to go to court for a brief hearing before a Judge. The purpose of that hearing is so that the Judge can make sure that you and your spouse understand your agreement, that the agreement was entered into voluntarily by both sides, that all relevant financial information has been fully disclosed by both sides, and the agreement is fair and reasonable. Also, if you and your spouse have children you will each separately have to attend a program, sponsored by the court, about the effect of divorce on children.
The court has to go along with what we want to do so long as we agree and we have both been honest. Not true. The court can, within reason, do whatever it wants even if you and your spouse have agreed to something else. In fact, anything to do with child custody, visitation and child support is always up to the court. The court can, at any time and for almost any reason, reopen a case and change its decision regarding child custody, visitation and child support. The only decision the court can't reopen is how property is divided between you and your spouse. However, even that issue can be reopened if it is later discovered that one or both parties lied about or concealed property.
The only property the court can divide up is property accumulated while we were married. The court can divide up property that one spouse or the other had before the marriage if the court feels this is appropriate. The fact that a piece of property belonged to one spouse or the other before the marriage is only one factor of many that the court considers in dividing up property. An important part of any divorce is the detailed financial disclosures required in all cases by the court. Each spouse will be required to file a financial statement form with the court. There are two types of financial statements. One statement is for persons making up to $100,000.00 per year and the other is for persons making over $100,000.00 per year. Blank versions of these financial statements are available at the Massachusetts Courts Forms website.
My pension belongs to me. In recent years the courts have overcome any reluctance they might have had regarding dividing up pensions and other retirement assets, such as 401Ks and IRAs. It is a mistake to think that a pension or other such retirement asset is "immune" from division by the court. Whether or not a retirement asset is likely to be divided by the court depends on a number of factors. Some of those factors are: the length of the marriage; the relative incomes of the parties; the ages of the parties; the values and types of assets accumulated by the parties so far; whether one party has made sacrifices for or substantially contributed to the other party's career advancement; whether one party has foregone career or employment opportunities in order to keep house or care for the children; et cetera. Lastly, while it may seem impossible to divide something that nobody is going to receive, if at all, until far into the future, the courts have found ways.
The most common methods are dividing the present value of the pension or dividing the ultimate payments once they begin. Present value is a dollar amount that an accountant or an actuary calculates. The idea is vaguely similar to figuring out how much money would have to be invested right now to create a fund that could pay all of the pension payments that the pension beneficiary would receive over his or her expected life span. Once a present value figure is determined, that figure is added to the list of assets that is presented to the court. The other method simply gives the spouse without the pension a set percentage of the pension as a whole or a percentage of each payment received by the pension beneficiary spouse as each payment is made. These examples are only two of the many possible ways a court might decide to deal with pensions.
Whoever ends up with the children will end up with the house. It depends. While it is true that the courts protect the interests of children above all else in a divorce, that does not mean that the spouse that has the children most of the time gets the marital home. The court may decide that the home should be sold and the proceeds divided. However, the court can order that the sale be delayed until the children reach a certain age. Also, other assets of the marriage may be "traded" for one spouse's interest in the house or one spouse may simply buy out the other.
We will have to list everything we own and the court will divide it all up. Very unlikely. There is no need to list every single item of personal property. The court is only interested in dealing with items of significant value such as real estate, cars, stocks, bonds, valuable art, et cetera. Judges hate getting involved in deciding who gets the throw rug in the bathroom or the end tables in the den. Often the only mention of ordinary personal property in a divorce judgment is the simple statement that all personal property not specifically listed has been divided to the satisfaction of the parties.
Child support is determined by the unique circumstances of each case. Not any more. For a number of years Massachusetts, and all the other states as well, have used guidelines to calculate the amount of child support in almost all cases. In Massachusetts specifically, the amount of the child support payment is determined by a formula that takes into account a number a factors, such as number of children and the gross incomes of the parents. The result provided by the formula is then ordered by the court unless there are specific and unusual facts that would make the formula result unfair.
The court will require a specific visitation schedule. Usually the court does not want to get involved in setting visitation schedules. In fact, the term visitation is beginning to be replaced by the term parenting schedule. The court expects that in most cases the parties can set their own schedule. In fact, most separation agreements and divorce judgments deal with visitation by simply stating that the parties shall have reasonable rights of visitation and leave it at that. However, a set schedule can be a good fall-back position if disagreements about the parenting schedule might be a problem later.
The spouse that the children live with most of the time will control how the children are raised. Most judges in Massachusetts prefer to see joint legal custody. This means that the parties are equal in the important decisions regarding the children, such as religion, schooling, elective medical treatment, and the like. As a practical matter, true equal time between the parents is very rare. School and work schedules usually make an even division of time impossible. Also, based on current thinking in the field of child development, most judges prefer to see that children, especially younger children, have a single “home base.” Consequently, the spouse that the children reside with most of the time will be the one making ordinary day to day decisions regarding the children, such as meals, clothing, bedtime, etc., without any need to inform and consult with the other spouse. However, the courts strongly encourage both parents to be very involved with all aspects of the children's lives and to communicate with each other as frequently as necessary to maintain that high level of mutual involvement.
HOW DO DIVORCES GET DONE?
DIVORCE PROCEDURE IN A NUTSHELL
How a divorce is handled by the courts depends on several factors. The key factors are the legal grounds for the divorce and whether or not the divorce itself or any issues within the divorce are contested.
GROUNDS FOR DIVORCE
A spouse can seek a divorce on the grounds of cruel and abusive treatment, utter desertion, adultery (which is also a crime in Massachusetts!), gross and confirmed habits of intoxication (by drugs or alcohol), impotency, refusal to support, confinement for a crime and irretrievable breakdown of the marriage. The grounds for divorce in Massachusetts are controlled by statute. Consequently, the only way to get a divorce in Massachusetts is to fit your situation into the possible grounds listed above. The ground of irretrievable breakdown of the marriage is relatively new in Massachusetts. This ground was "added" by the Legislature in 1975.
Prior to that addition, most divorces were sought on the ground of cruel and abusive treatment. It was not unusual for the parties to create or exaggerate some incident to fit their case into the cruel and abusive category. The ground of cruel and abusive treatment was "popular"; because, it was the fastest route to a divorce.The other grounds recognized by the law are self explanatory.
The most common ground for divorce now is irretrievable breakdown of the marriage. Divorce on the grounds of irretrievable breakdown of the marriage is similar to what is commonly referred to in other states as no fault divorce. This description is actually pretty accurate. The key feature of divorce for irretrievable breakdown of the marriage is that, unlike the other legal grounds, there is no need to "blame" one spouse or the other for the destruction of the marriage. Also, there is no need to accuse one or the other spouse of embarrassing or inappropriate conduct.
No divorce can be granted under law unless the court is satisfied that legal grounds exist. In other words, if you decide to file for divorce on the grounds of adultery, you had better be prepared to prove adultery in court. If a spouse decides to disagree with the grounds chosen by the spouse that filed first, the case will eventually go through a full trial. A full trial on the question of whether a divorce should be granted at all is very expensive (in legal fees), takes a very long time to be scheduled before the court and is, fortunately, very rare. Nowadays, with the availability of the ground of irretrievable breakdown, trials over whether there should be a divorce at all are almost unheard of.
Usually when people talk about a contested divorce they mean a divorce case where the parties cannot agree regarding one or more of the major issues (child custody, child support, visitation or parenting schedule, alimony, or property division) that must be decided before a divorce will be granted. If the parties truly cannot agree on some point, the court will decide for them. The court will not make such a decision on a permanent basis until a full trial has been held on the issues on which the parties cannot agree.
No matter what legal ground might be the basis for the divorce, certain steps should be taken as soon as one or both spouses have decided the marriage is over. First, a lot of information needs to be gathered together. The court requires a certified copy of the marriage certificate. Detailed information about income, assets, liabilities and employment of both spouses is also required (go to the Massachusetts Courts Forms website for copies of the two types of financial disclosure statements required by the Probate & Family Court).
Thought should be given as to how to fairly divide up assets and liabilities. If necessary, steps should be taken to prevent one spouse or the other from hiding, spending or destroying assets or incurring further debt. Also, if the decision to seek a divorce by one spouse might result in violence, then steps such as alternate living quarters, a restraining order or both should be examined and taken before any announcement of intentions is made.
Despite the name, temporary orders are often the most important events in a divorce case. These orders often set the stage for how important issues are ultimately resolved. As soon as a divorce action is started, by the filing of a complaint, the court has the power to make orders about the issues in the divorce pending full trial or approval of a separation agreement.
Often times the parties separate without deciding how important issues, such as child support and visitation, will be handled. Either party can, at the time the divorce complaint is filed or any time thereafter, file a motion for temporary orders asking the court to decide these issues until there is a final judgment in the case. The party filing the motion must give the other side at least seven days notice, except in emergencies, of the date and time that the motion will be heard by the court. Unless the parties agree on the temporary order, the court will, after a brief hearing, make a decision on the motion that will be binding on the parties until a different order is issued or there is a final judgment in the case. Such orders are most often sought and given regarding child custody, support and visitation issues. However, these orders can be used to preserve assets, prevent a spouse from incurring further debt or even to have one spouse pay some or all of the legal fees of the other spouse.
Anything that needs to be done prior to the final resolution of the case can be the subject of a temporary order. Very often temporary orders will form the framework for the later final judgment. Therefore, such orders must be viewed in the context of their effect on the case as a whole, not just as a way to solve an immediate problem.
PROCEDURES FOR PARTICULAR GROUNDS FOR DIVORCE
Irretrievable Breakdown of the Marriage (Uncontested)
If the parties have mutually decided that the marriage is over and both believe that they will be able to agree on how to handle all the applicable issues that must be decided in any divorce (child custody, child support, visitation, alimony or property division), then the best way to proceed will usually be an uncontested irretrievable breakdown of the marriage divorce. Once this decision has been made, each spouse should retain his or her own attorney and provide that attorney with the information mentioned above. Although the law does not require that a person seeking a divorce have a lawyer represent them, your own attorney will make sure you are fully informed regarding your rights and responsibilities. Also, an attorney will know precisely what information is needed by the court and how to best organize and present that information to the court. Lastly, your attorney is required to protect your rights and can help you make the many decisions that must be made in preparing for and proceeding through a divorce.
Once all the necessary information has been obtained, you and your lawyer will fill out a financial statement and, if applicable, the child support guidelines worksheet. Then copies of the forms are exchanged, usually through the lawyers, and work on the separation agreement, also sometimes known as a marital settlement agreement, begins.
The separation agreement is the written "agreement" that tells the court how you and your spouse want matters in your divorce settled. The negotiations necessary to arrive at a final separation agreement can sometimes take a long time. Your attorney can conduct the negotiations for you or he or she can simply advise you, as you and your spouse talk directly, or some negotiations can be direct and others handled by the lawyers. Some couples prefer to use an independent mediator to help them arrive at agreement. The parties’ lawyers then get involved to shepherd the mediated agreement through the court system as described below. The key to successful and efficient negotiations is clear and open communication between you and your lawyer. The only thing your lawyer cannot do is speak directly to your spouse, if your spouse has a lawyer, unless your spouse's lawyer gives permission for direct contact by your lawyer.
As soon as a final separation agreement is signed by both spouses, that separation agreement, the various documents required by the court (such as the financial statements), and a filing fee are filed with the court. The court will then send a notice of hearing to the parties and the lawyers telling them when and where the hearing before the judge will be held. If there are children, each spouse will be required to separately attend a program sponsored by the court about the effect of divorce on children and how to help the children deal with the fact of the divorce.
On the day of the hearing the case will be called and the parties and their attorneys will go before a Judge of the Family and Probate Court. The purpose of this hearing is to satisfy the judge that everyone has been honest and open, that everyone understands the contents and impact of the separation agreement and, most important, that the agreement is fair and reasonable. Although different judges like to do things in different ways, most of the time the hearing consists of each spouse being asked a series of questions about the agreement terms and the grounds for the divorce by his or her own lawyer. Sometimes the judge will also ask a few questions. If the judge is satisfied that there has been full disclosure and that the separation agreement is fair and reasonable, the judge will say that the divorce is granted right there in court. A written copy of that order will follow a few days later in the mail. If the judge is not satisfied for some reason he or she will say so and may offer a suggestion as to what needs to be done to "fix" things. Sometimes the parties cannot come up with an agreement that satisfies the judge. In that case the matter becomes contested and must be scheduled for a full trial. Fortunately, this type of problem is rare.
The judge's order granting the divorce does not make the parties divorced instantly. In the case of an irretrievable breakdown of the marriage, 120 days must pass before the divorce judgment becomes final and binding. This time period is often referred to as the nisi period. Once the nisi period has passed the divorce judgment is final and the parties can legally marry again.
Irretrievable Breakdown of the Marriage (Contested)
If one spouse has decided that the marriage is over; but, the other does not agree or they cannot agree as to the issues that must be decided (child custody, child support, visitation, alimony, or property division), a divorce can still be obtained on the ground of irretrievable breakdown of the marriage. However, a different procedure must be used.
In contested cases most of the same documentation and information is provided to the court. However, in contested cases no separation agreement is filed. Also, one spouse is doing the filing with the court and the other spouse will have to be served with a summons, obtained from the court, and copies of all the papers filed by the spouse taking action. In these cases a longer hearing (a full trial) is scheduled for a date not less than six months from the initial filing of the divorce action. If there are children, each spouse will be required to separately attend a program sponsored by the court about the effect of divorce on children and how to help the children deal with the fact of the divorce.
If there are any motions for temporary orders scheduled by either of the parties early in the case, the judge will conduct a case management conference at the time of the motion hearing. The court will then issue a case management order. That order contains, among other things, a notice of pretrial conference. At that pretrial conference the judge will meet with the parties to try to get the parties to settle their differences. If settlement is impossible, the judge will make sure that the case is truly ready for trial. A trial date will be chosen and a notice of trial date will follow by mail.
At the trial, each spouse, through testimony, documents and other evidence presented by that person or by his or her lawyer, tries to convince the judge to do what he or she wants regarding the issues (child custody, child support, visitation, alimony, and property division) that must now be decided by the judge. After the trial is over the judge will not give his or her decision right away. The judge will issue a written decision sometime later. That written decision will become the divorce judgment and will become final 90 days after the date it was issued by the judge. However, at any time during this process the parties can, by the filing of a separation agreement, convert a contested irretrievable breakdown divorce into an uncontested one.
Contested fault grounds (cruel and abusive treatment, utter desertion, adultery, gross and confirmed habits of intoxication (by drugs or alcohol), impotency, refusal to support, confinement for a crime) divorce.
The procedure for what is commonly known as a fault grounds divorce is similar to that for a contested irretrievable breakdown of the marriage divorce; except, there is no requirement that six months pass between the filing of the divorce complaint and the hearing or trial. A number of documents must be filed with the court, along with the filing fee, to get things started. Here again, the non-filing spouse must be served with a summons and copies of all the papers filed.
Here again, there will be a case management conference early on in the case resulting in the issuance of a case management order. That order will be accompanied by a notice of pretrial conference. At that pretrial conference the judge will meet with the parties to try to get the parties to settle their differences. If settlement is impossible the judge will make sure that the case is truly ready for trial. A trial date will be chosen and notice of trial date will follow by mail. At this trial, each spouse, through testimony, documents and other evidence presented by that spouse or his or her lawyer, tries to convince the judge that there are grounds for a divorce and to do what he or she wants regarding the issues (child custody, child support, visitation, alimony, and property division) that must now be decided by the judge. After the trial is over the judge will not give his or her decision right away. The judge will issue a written decision sometime later. That written decision will become the divorce judgment and will become final 90 days after the date it was issued by the judge. Here as before, at any time during this process the parties can, by the filing of a separation agreement, convert a contested case into an uncontested one or even an uncontested irretrievable breakdown of the marriage divorce.
Uncontested fault grounds (cruel and abusive treatment, utter desertion, adultery, gross and confirmed habits of intoxication (by drugs or alcohol), impotency, refusal to support, confinement for a crime) divorce.
Uncontested fault grounds divorces are fairly rare. They are mostly found in cases where one spouse is trying to get a divorce based on fault grounds and the other spouse is missing or parts unknown. Also, sometimes the parties in a contested fault grounds case resolve their differences verbally at trial and the court simply makes the verbal agreement the judgment instead of sending the parties away to draft a separation agreement.
Procedurally, uncontested fault ground divorces usually begin as contested cases that wind up being resolved by agreement and conversion to an uncontested fault grounds divorce or an uncontested irretrievable breakdown of the marriage divorce. Consequently, these cases are a "mix" of contested case and uncontested case procedures. Please refer to the procedural information for each type of case, noted above, for further information.
THE FINANCIAL ISSUES
As you can see from the financial statement (see the Massachusetts Courts Forms website for the court required financial statement forms) and the child support guidelines worksheet (see the Massachusetts Courts Forms website for the child support guidelines worksheet form) the court requires a great deal of detailed information about each spouse’s finances. Each spouse must fill out and file a financial statement. All the information sought on the form must be provided. Those questions that do not apply must be marked "none" or filled in as 0.00. Any significant change in the financial picture requires filing of an updated statement. It is not unusual for two or three financial statements to be filed over time for each spouse in the course of a divorce.
The judge will examine the statement carefully for an indication of the person's honesty as well as to learn about that person's finances. Expenses that far exceed income, missing assets or overstated liabilities may cause the judge to disbelieve that party's testimony on financial and other issues.
At least one child support guidelines worksheet must be filed if there are children that might be eligible for child support. Often, if there is a dispute about income attributable to one or both spouses, conflicting worksheets may be filed. The dispute will be resolved by the court if the parties cannot agree or convince the court that their agreement on this issue is reasonable. The court protects the interests of the children of a divorcing couple above all else. Attempts to reduce or eliminate child support that the court believes are less than honest will do great harm to that party's credibility with the court.
The results of the child support guidelines worksheet will control the amount of child support awarded in almost all cases in which the guidelines apply. Child support is usually collected directly from the paying spouse's employer as a mandatory deduction from each paycheck.
Alimony is far less common than it used to be. Nowadays, with both spouses in most marriages working outside the home, there is less need for alimony upon the breakup of a marriage. When alimony is awarded, the amount is based primarily on the need of the spouse seeking alimony, the ability of the other spouse to pay and the standard of living of the parties during the marriage. See the page on this website about Massachusetts alimony for details.
Division of property and liabilities can be a difficult issue in divorce. Under the applicable law, specifically Massachusetts General Laws chapter 208 section 34, the court considers various factors in deciding to award alimony and/or dividing the property and liabilities of the spouses. Those factors are "the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. In fixing the nature and value of the property to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage. The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit...."
Predicting what a court is likely to do in a particular case can be difficult due to the number of factors considered and unique circumstances of each case. Lawyers study past cases that have applied these factors in various situations to try to learn how the court will act in the future. This study is the essence of how lawyers try to advise their clients who are facing divorce. The only clear general principal in property division is that the court will not allow one spouse to be made destitute by the divorce while the other prospers. Also, the division of property and debt is the only issue in divorce that, in the absence of fraud, cannot be reopened once the court's decision has been made.
There is one overriding rule that the courts apply in deciding child custody and parenting schedule (visitation) issues. That rule is the best interests of the child. People often speak of custody "rights" and visitation "rights". In truth there are no such rights. All that matters to the court is that the best interests of the child are served. However, certain trends do appear in the past decisions of the courts.
The courts prefer to see the child stay in the marital home, assuming that it is a fit home. The courts prefer frequent contact, through visitation or shared custody arrangements, between the child(ren) and both parents. The courts do not like to see a divorce result in the child(ren) being cut off from the extended family of one or the other parent. The courts expect that both parents will put their own interests and hostility aside when dealing with the children. Parents that the court believes are manipulating or using the children to gain the upper hand or simply to inflict pain on the other parent will be dealt with harshly by the court.
The most difficult, expensive and time consuming divorces are those where the parties fight over custody and the parenting schedule. Unless abuse or serious neglect is proved to the satisfaction of the court, the court will not prevent contact between a child and a parent. It is always better for the parties to settle these issues between themselves. If custody or the parenting schedule cannot be agreed upon, both sides must be prepared to prove that they are right through independent testimony or other evidence. Mere accusations will be ignored by the court and may convince the court that the accuser is vindictive or dishonest.
RESISTANCE IS (USUALLY) FUTILE
CONTEMPT PROCEEDINGS IN DIVORCE, CUSTODY, AND PATERNITY CASES
Judgments and other court orders are enforced in a number of ways. The most common enforcement mechanism is a contempt action.
If, for example, part of your divorce judgment states that your ex-spouse was supposed to pay you one-half of the savings account within 30 days, and 30 days has gone by without payment, you can file a complaint for contempt with the court. The court will then give you a summons. You will then arrange for the summons and a copy of the complaint to be served on your ex-spouse at least ten days prior to the court date, called a return day, stated on the summons.
On the return day, assuming your ex shows up, the judge will be interested in two things. One, is the court order in question clear and unequivocal? Two, was that court order willfully disobeyed? If the answer to both questions is yes, your ex will be found in contempt. At this point the judge can do various things to enforce the order including sending your ex to jail.
Now let’s get into some of the details.
CONTEMPT ACTIONS RELATED TO CHILD SUPPORT
Something in Life is Free!
If you have a valid child support order that is not being paid, Massachusetts will help you collect that unpaid support even if that means Massachusetts has to provide a lawyer to help you, for free. How can this be you ask? Federal law requires all the states to provide assistance to persons who are owed child support. And it does not matter if the child support order is from a divorce, custody, or paternity judgment. In Massachusetts the agency that provides this assistance is the Massachusetts Department of Revenue, Child Support Enforcement Division (MassDOR/CSE).
In order to assist with child support collection, MassDOR/CSE requires a lot of information and has certain rules that must be followed. The best place to learn how they can help you is their website.
On the Dark Side.
If, on the other hand, you are defending against a claim that you have disobeyed a child support order, you are on your own. Do not take such accusations lightly! Not paying court ordered child support can have very bad consequences.
- DOR can seize your tax refunds;
- DOR can seize you bank account(s);
- DOR can revoke your driver’s license;
- DOR can revoke your professional (doctor, lawyer, plumber, etc.) license;
- DOR can take you to court and ask the judge to throw you in jail!
Also, child support, like student loans, can never be discharged in bankruptcy. There is no way to get out from under past due child support unless you have already served the person you are supposed to pay with a complaint for modification and you manage to convince the judge to reduce or eliminate the child support all the way back to that date of service.
Protection for the Payor.
If you are paying child support, even if you are not behind, there are things you can do to protect yourself. First and foremost, never ever pay child support in cash! Always pay by check or money order and keep records of every single payment. Second, if the child support is being paid by payroll deduction, keep a copy of every single pay stub or statement that shows child support being paid. Third, for those who’s child support payments are being handled by Massachusetts DOR, either directly or through payroll deduction, go on line with DOR and arrange for online access to your child support account. This online account information can tell you if you are ahead, behind or current on your payments. Be sure to check this account periodically. If the numbers don’t add up, you can take action before DOR or the other side takes action.
If your judgment or court order calls on you to make other payments for the benefit of you child(ren), such as one-half of uninsured medical costs for the child(ren), make sure you keep records of what you paid, when you paid, what you were asked to pay, and when you were asked to pay. Also, paying for things for the kids, such as clothes, toys, and school supplies, instead of child support is a big mistake. Judges rarely give credit for such “payments in kind” and DOR will not recognize such actions as a substitute for ordered support payments. Feel free to give your kids whatever you want to give them, but, those gifts are not a substitute for child support payments. Also, if you lose your job, or something else happens that decreases your income, immediately file a complaint for modification and serve the summons and a copy of that complaint for modification on the other side as soon as possible. If the other side says you can pay less or not pay until you get back on your feet, do not believe it! Only a court can change these things. Every week that goes by without a complaint for modification filed and served is another child support payment that can never be undone!
Blood from a Stone.
The last line of defense in a contempt action for past due child support is the inability to pay. The judge cannot put you in jail if you really do not have the ability to pay. Of course, you should have filed, and served on the other side, a complaint for modification the moment you lost your ability to pay the existing child support order.
This is not a place you want to be. As far as the judges are concerned, inability to pay does not mean that paying the ordered support amount cuts too much into your blackjack budget or makes it difficult to make the payments on your new 55” flat screen. Inability to pay means that you cannot pay the rent, the heat, the grocery bill and you have already cut your expenses to the bone. Typically, something beyond your control, such as a layoff or disabling injury, will have to be proved to the judge before he or she will, on a temporary basis, let you get away without paying past due support. Even if you get this temporary relief, the judge might not reduce the support order and will probably order you to sell assets and/or engage in a job search that will be monitored by the probation department of the court.
CONTEMPT ACTIONS RELATED TO CUSTODY, VISITATION, OR PARENTING TIME
Don’t Mess with the Kids.
If you have decided to limit the other side’s contact with the child(ren) because he or she is behind on support, is behind on alimony, insulted you, disagreed about something you wanted to do with the child(ren), has a new boyfriend/girlfriend or just in general makes you crazy, get over it. You will fail, and the judge will punish you.
Few things bring down the wrath of the court faster and more severely than interfering with the other parent’s time with the child(ren). The only exception to the above rule is a real threat to the safety of the child(ren) that you can clearly prove in court and did not exist when the original orders were made. Besides, if you became aware of a real threat to the safety of the children you would have kept them safe and immediately filed and served a complaint for modification and a motion for temporary orders addressing the safety concern, right? Good.
Don’t Be a Jerk.
Child custody, visitation, and parenting time work best when everyone is cooperative and considerate. If the kids are supposed to be home on Sunday at 4 PM have them home on Sunday at 4 PM. If something holds you up, call.
If the other side wants to trade a day to take the kids to a family reunion, do it. If the scout meeting or the softball game is going to delay your pick up of the kids by two hours, deal with it. Better yet, go to the game and cheer them on.
Using the sledge hammer of a contempt action as substitute reasonable accommodation, even if the “jerk” on the other side doesn’t always reciprocate, is a waste of time, money and stresses the kids. The judge will not be kind to anyone stressing the kids.
Be the Parents.
Custody, visitation, or parenting time are things decided by the court and the parents, not the kids. If a child does not want to go on a visit because he or she won’t be able to hang out with friends that day or there isn’t good internet access at the other home, that is too bad. If the parents give that control to the child(ren) everybody’s lives get harder. What the child(ren) want, especially as they become older, should be part of any changes in parenting time that both parents and/or the judge is or are considering for the future. However, “he or she didn’t want to go” will not save you from being held in contempt for not following the existing judgment or order.
CONTEMPT ACTIONS ABOUT PROPERTY AND DEBT
Don’t Promise What You Can’t Deliver.
The best way to avoid a contempt action for failing to obey property or debt division orders is to not agree to things you can’t afford to do. If you promise, as part of your separation or marital settlement agreement that is now a court judgment, to make all the payments on a certain credit card, make sure you can afford that obligation.
No Second Chances.
As discussed in more detail elsewhere in these materials, absent fraud, the property and debt division provision of a divorce judgment cannot be modified. Trying to convince the judge at the contempt hearing that the existing order is too hard or unfair will not work.
The only way out, and it is not an easy way, is filing for bankruptcy. The federal bankruptcy courts have the power, as part of a bankruptcy case, to end, or discharge as they say, property and debt division obligations arising out of a divorce. Such a discharge of obligations comes only as part of a full personal bankruptcy case. You cannot go to bankruptcy court just to escape particular obligations that you choose. It is an all or nothing process.
If you think you may fall into this category, please contact me to discuss that matter further. If it seems appropriate, I will refer you to a lawyer that does bankruptcy work.
As you may have already guessed, there is no property or debt division contempt action in paternity cases because, by definition, the parents were never married to each other. The fact of a marriage is what “unites” the property and debt of the now married couple. Part of the reason divorce actions exist is to “undo” the unification of the married couple’s property interests.
The information herein is a brief discussion in general terms of some of the more important concepts related to contempt actions. Outcomes in court in individual cases are dependent on the facts of each case, the strength of the evidence, the proper presentation of that evidence and the often changing state of the law. Those who use this information as a substitute for representation by an experienced attorney well versed in this area of law do so at their own risk.
IS IT TIME FOR A CHANGE?
MODIFICATION OF DIVORCE JUDGMENTS
As we all know, as time goes on, things change. People move. They change jobs. Children grow. If things change enough, it may become necessary to modify, or change, parts of the divorce judgment. This is especially true where children are involved.
MODIFICATION OF CHILD SUPPORT
If you are divorced, and you were a parent at the time of the divorce, or if there is a court judgment dealing with child custody, child support, and/or parenting time, then odds are there is a child support order as part of your case. In Massachusetts and all the other states, child support is usually determined by plugging information, such as incomes, the number of children and health insurance costs, into a formula. The formula spits out a number and that number usually becomes the amount of child support.
Back to the Future
As I stated above, things change. Even those judgments based upon a thorough and well written agreement can’t predict the future. Jobs are lost, and new jobs found. Health insurance goes up. Day care costs may go down.
If things change enough, what was a fair and workable child parenting schedule or support amount at the time of the divorce may become a crushing burden to one parent and an unfair windfall to the other. Fortunately, those parts of a judgment relating to children can be modified if there has been a material change in circumstances since the judgment was made.
Easy or Hard
In Massachusetts, the Massachusetts Child Support Guidelines usually determine how much child support will be. The guidelines, as we call them, apply a formula to the parents’ gross incomes, the cost of health insurance, the cost of day care and the number of children. Out pops a number that the judges will order as child support unless someone comes up with a very good reason that the guidelines support number is no good.
If both sides agree that this change should happen, then a joint petition to modify child support, updated financial statements, and a child support guidelines worksheet can be filed with the court. Unless the judge believes there is something wrong and decides to call the parties in for a hearing, the joint petition to modify child support will be allowed, by the judge. That new child support amount becomes a judgment of modification that goes into effect the date the judge signs it. The joint petition is, as you may have guessed, the easy way to change child support.
If one side or the other believes it is time to change the child support amount, and the other side does not agree, then the side seeking the change must file a complaint for modification, updated financial statement, and various other documents with the court. The side seeking the change must then get a summons from the court and serve that summons, and copies of all the other papers that were filed, on the other side. This modification case then works its way through the court (motions for temporary orders, case management conference, pre-trial conference, status conference and then trial) until, after the trial, the judge decides if child support should change and, if so, what the new child support amount should be. As you have probably guessed, this is the hard way.
It’s Now or Never!
One of the most important things to remember about child support is that the law does not allow judges to change child support that is already due and payable unless a complaint for modification has already been filed and served! In other words, there is no way to retroactively change the amount of child support for any time period before the service date of the court summons and complaint for modification on the other side. What this means is that, unless you and the other parent agree on the new child support amount and you will be filing the above described joint petition and other papers with the court very soon, you must file and serve your complaint for modification as soon as possible.
People commonly make the mistake of believing that unpaid or overpaid child support can be “fixed” later. That is wrong. Every week that goes by without a complaint for modification or joint petition to modify child support on file is another week that the full amount of ordered child support must, sooner or later, be paid in full, no matter what the court may order later.
MODIFICATION OF CUSTODY, VISITATION, OR PARENTING TIME
In every case where there are dependent children at the time of the original judgment, that judgment will contain some sort of provisions regarding the custody of the children and the time they will spend with each parent. These provisions may be as simple as shared legal custody, children to reside primarily with mother (still the most common arrangement despite the steady rise in custodial fathers), and parenting time to be determined by agreement of the parties. Here again, things change. What was working at the time of the divorce may no longer be what is in the best interests of the child(ren).
Father (Mother or Judge) Knows Best (Interest)
A good rule of thumb to remember in divorces, or any other court case involving children, is that the judge does not care about the mother or the father. The judge cares about the child(ren). No judge is going change custody, or anything related to custody, unless the judge believes that the change is in the child’s best interest. Also, as with other types of judgment modifications, the court will not make any changes to the existing judgment until the judge is satisfied that there has been a material change in circumstances since the last judgment was entered.
Change is in the Eye of the Beholder
There is no simple definition of what constitutes a material change of circumstances. However, there are certain events that most judges agree constitute a material change of circumstances as to custody, visitation, or parenting time. Perhaps the best example is the non-custodial parent wanting or needing to move for a new job or to be closer to family. The distance between the homes of the parents after the move may be such that previous visitation or parenting time arrangements are no longer workable. If the parties agree as to what the new arrangements need to be, the judge is very likely to go along with them and enter a judgment of modification including those agreed new arrangements. If the parties cannot agree, there will need to be a trial. After the trial, the judge will decide if a change needs to be made and what the new arrangements will be.
Another common material change of circumstances, especially in cases where the children were young at the time of the original judgment, is the child(ren) getting old enough to express a legitimate desire for some sort of change. A common example of this is boys reaching their teenage years and wanting to spend more time with their fathers. Here again, if the parties agree, the judge will likely go along and enter the requested judgment of modification. If not, there will be a trial and the judge will decide what, if anything, will change.
No Do Overs!
If you are thinking of using a complaint for modification to get the custody, visitation, or parenting time that you thought should have been part of the original judgment, you are wasting your time. If hindsight has convinced you that what you agreed to, or the judge ordered after trial, is not what you want, there is little you can do. Remember, before you are going to get a judge to modify a judgment you must convince the judge that since the original judgment, there has been a material change of circumstances and the change in custody, child support, or parenting time you want is in the children’s best interest.
The Uphill Battle
If you believe that the other side is no longer a fit parent, you can file a complaint for modification seeking changes in custody or parenting time arrangements to ensure the safety of the child(ren). You can even get into court right away on an emergency basis if the child(ren) is (are) in danger.
You must bear in mind that the judges view accusations of unfitness with great skepticism unless those accusations are accompanied by very powerful independent evidence of unfitness. As the party seeking the modification, you have the burden of proof as to the material change of circumstances (the unfitness of the other parent) and what custodial or parenting schedule changes are necessary to protect the child(ren).
Very often, requested changes in custody or parenting time will have the effect of changing child support. If, for example, a child that was living mostly with the mother will now be living mostly with the father, child support from the father to mother will end and child support from the mother to the father will begin.
As you might imagine, such custody related child support changes can become the tail that wags the dog. The judges take a very dim view of anyone seeking a change in custody, or blocking a seemingly appropriate change in custody, because that parent is trying to escape from or hold onto child support. Judges can and will “punish” parties that put their financial wants above the best interests of the children. The judge can order one side to pay the other side’s legal fees and/or make custodial or parenting time orders that reflect the judge’s conclusion that one side or the other is in it just for the money.
MODIFICATION OF PROPERTY AND/OR DEBT DIVISION
Unless you can show that the property and/or debt division included in the original divorce judgment was wrong because of fraud by the other side that could not have, in the exercise of due diligence, been uncovered at that time there is no way to re-open the property and/or debt division portion of the that original divorce judgment.
The information herein is a brief discussion in general terms of some of the more important concepts related to modification of divorce judgments. Outcomes in court in individual cases are dependent on the facts of each case, the strength of the evidence, the proper presentation of that evidence and the often-changing state of the law. Those who use this information as a substitute for representation by an experienced attorney well versed in this area of law do so at their own risk.
Introduction: Welcome to the QDRO and DRO drafting page. This site is presented by Attorney Peter C. Alessio for the sole purpose of providing high quality QDRO and DRO drafting services by a lawyer to lawyers, their clients, and individuals with existing divorce jujdgments.
- $500.00 for the first order drafted, including full implementation service available for cases in Berkshire County Probate & Family Court in Massachusetts.
- $350.00 for each order after the first.
FREQUENTLY ASKED QUESTIONS (FAQS):
Why limit drafting services to lawyers, their clients, and individuals with existing divorce judgments? Providing QDROs and DROs to unrepresented parties requires a level of involvement in the parties’ decision making process that can constitute the practice of law. If a lawyer is dealing with parties outside of jurisdictions to which the drafting lawyer is admitted, this can lead to violations of ethical rules and refusal of malpractice insurance coverage. This very same high level of involvement creates a risk of legal malpractice if the unrepresented party does not understand or otherwise does not follow through on what must be done once the order has been written and pre-approved by the retirement plan or plans in question. Only a lawyer familiar with his or her client’s situation, the law of divorce in the client’s jurisdiction, and the requirements of the local courts can provide the oversight and follow through that leads to the drafting of quality orders and their prompt and effective implementation. The only exception to the above is for lawyers in Berkshire County, Massachusetts that prefer that I work directly with their clients and want me to be responsible for seeing all the orders in a case through to implementation. This service includes court appearances, if necessary.
I have seen substantially higher fees elsewhere for this type of work. How can you keep your price at this level and offer the level of service you claim? By limiting my services to other lawyers, the clients they send me, and those individuals that already have a divorce judgment in place, the time spent gathering information, explaining options, re-writing orders and monitoring follow through is dramatically reduced. Also, once I have had the opportunity to work with a particular attorney, he or she will usually have me work with them in future cases, further streamlining the process.
How can one lawyer draft QDROs and DROs for all the various retirement plans and systems across the country? The vast majority of retirement plans (virtually all non-government plans) must qualify under and are governed by federal statutes such as ERISA, the regulations promulgated thereunder, and certain provisions of the IRS Code. Consequently, much like bankruptcy cases, the law is the same across the country. The various state and federal retirement plans have such large memberships that frequent drafting of orders enables me to maintain an up to date body of knowledge on the unique aspects and requirements of these plans.
What happens if a plan administrator rejects one of your plans? I will work directly with you and the plan administrator to address any problems the administrator might have with a proposed order. The one price you pay includes as much of my time as necessary to get the plan approved by the administrator. In fact, you do not pay until the order or orders in question are pre-approved by the plan administrator.
What happens if a court rejects one of your plans? If the proposed order is submitted to the court in the proper form for that court and with notice of pre-approval from the plan administrator, such rejections are very rare. However, in that rare event, again, I will work directly with you and the plan administrator to address the concerns raised by the court in question.
If I hire you to write an order for one of my clients, how does the process work? You, or one of your staff, can contact me by telephone, fax, or e-mail. Once I have gathered all the necessary information, I will draft the order and submit the order to the retirement plan administrator and obtain the needed pre-approval. Once the order is pre-approved by the plan administrator, payment is due. Once I am paid the order is immediately sent by mail, fax or e-mail, as you direct, to you or, if this is a Massachusetts case, you can direct me to arrange for the parties to sign, if applicable, and I will file the order with the court. If you, as the attorney, wish to handle these final steps, I generally recommend that the plan pre-approved orders be sent to you electronically. Electronic transmission will allow you to take a pre-approved order and format it as required by your local court. Along with the pre-approved order you will receive information and instructions to allow you or the court, depending on the custom in your area, to submit the actual order made by the court to the retirement plan for implementation. Once again, I am available to answer any questions and assist in these final steps at no extra cost.
What if changes in the law over time affect one of your orders? I maintain a database, strictly confidential, that ties together the lawyer I have done orders for and the retirement plans named in those orders. Any time there is a new development that might affect the validity or operation of orders written for a particular plan, I contact those lawyers I have worked with regarding that plan and advise them of any actions that might be necessary. The advice is free. The cost of any further work by me in such events is negotiated on a case by case basis.
CRIMINAL DEFENSE AND WHAT YOU SHOULD OR SHOULD NOT DO
Being accused of a crime is a frightening thing. Being found guilty of a crime can result in jail time and/or a range of lesser punishments. It is important that everyone know their rights and what they should or should not do if arrested or charged with a crime.
A person can be accused of a crime in a number of ways. A person can be arrested, summonsed to court for a show cause hearing, summonsed to court for arraignment on a complaint or summonsed to court for arraignment on an indictment.
If a police officer witnesses a crime, he or she can usually arrest the person or persons the officer saw commit the crime. If a police officer receives information that the officer believes constitutes a crime and also identifies the person that supposedly did it, he can still make an arrest if (1) the information received adds up to what is called probable cause and (2) it is an emergency. If there is no emergency, the police officer must go to court and convince the court to issue an arrest warrant. The police officer can then use that warrant to arrest the accused person. Except in rare cases, an arrest results in the court issuing a criminal complaint, which is the official start of most criminal cases.
RESISTANCE IS FUTILE
What should you do if you are arrested? First and foremost, do not resist! Under proper circumstances the law gives the police the power to arrest on the spot. Part of that arrest power is the right to use reasonable force to make an arrest. If you run, they can chase you down. If you push, they can push back, tackle you and cuff you. If you take a swing they can pepper spray, club and/or taze you. If you use a weapon they can kill you!
Also, don’t be jerk. Do not make the job of the arresting officer(s) any more difficult. Arrestees that do what they are told and treat the police in a civil manner get better treatment from the police. If you mouth off or otherwise make things difficult they will find ways to make your arrest even less fun than it already is. Keep your mouth shut except to provide identifying information. Don’t even provide identifying information beyond your name if it will get you in trouble. You have the right to remain silent.
WHERE’S MY #@%! LAWYER?
You also have the right to a talk to a lawyer before answering any questions. If the police start to ask you questions, politely ask to see a lawyer. If you cannot afford to hire a lawyer, the state must provide one for you. As you might expect, the police hate this sort of thing. Don’t worry about that. Continue to be polite and otherwise cooperative. They have no choice but to honor your request. They may hint that skipping the lawyer may result in lesser charges or earlier release or that asking for a lawyer means you are guilty. None of that matters. Do not ever give up your right to a lawyer.
As a practical matter, the police themselves will not usually get you a lawyer. They will, either take you to court, and have the court get you a lawyer, or they will call a bail commissioner or clerk-magistrate to set bail or release you until the next court session for arraignment.
THE REAL SERIOUS STUFF.
If you are arrested for a very serious crime or the police, because of who you are, really want to get you, they just might arrange for a lawyer to come see you in the lockup. Listen to lawyer very carefully, honestly answer the lawyer’s questions (everything you tell your lawyer is confidential) and do whatever the lawyer tells you to do. If this situation is a big deal, be prepared to be stuck in lockup for a while.
SUMMONSES TO COURT
Summonses to court are used in four ways in criminal cases. One of those, a summons to a witness to appear at trial and testify, is not related to this discussion. We are talking about being charged with a crime, not about being a witness. If a person is going to be charged with a crime, and they are not arrested, they will be summonsed to court.
If the police or a private citizen goes to District Court and asks the court to issue a criminal complaint against someone, that court has a choice. If the information presented constitutes the elements of one or more crimes and the person accused is clearly identified, the court can go “straight to complaint” by issuing a criminal complaint and a summons commanding the person accused (the defendant) to appear at court for an arraignment. If the court has doubts about the quality or quantity of the information presented, the court can instead issue a summons to the accused person for a show cause hearing. Show cause hearings are most common where a private citizen alone is asking the court to issue a criminal complaint.
Both the accuser and potential defendant must attend the show cause hearing. Show cause hearings are usually conducted by a clerk-magistrate or an assistant clerk-magistrate. Show cause hearings are usually conducted informally. The accuser tells his or her story and the potential defendant can, if he or she wishes, respond.
The standard of proof at a show cause hearing is probable cause. Probable cause is a pretty low threshold. In other words, the accuser can make a showing of probable cause so long as his or her story, if believed, constitutes all the elements of one or more crimes and clearly identifies the potential defendant. If the clerk-magistrate or assistant clerk-magistrate believes that probable cause has been satisfied, he or she will issue a criminal complaint and a new summons that tells the defendant when to return to court for arraignment.
Lastly, in cases of more serious crimes, a person can be summonsed to Superior Court if the grand jury issues an indictment. A grand jury indictment is much like a District Court criminal complaint. However, instead of a clerk-magistrate issuing a criminal complaint directly or after a show cause hearing, indictments are issued, or handed up, by what is called a grand jury. A grand jury is group of 23 ordinary citizens that are brought together, by yet another kind of summons, for the purpose of listening to evidence presented by the district attorney and deciding if that evidence meets the probable cause standard of proof. If probable cause is satisfied, the grand jury produces an indictment. That indictment is given to the Superior Court. The Superior Court then issues a summons to the defendant for arraignment.
What should you do at a show cause hearing. First, prepare for it. If there are witnesses or documents that can prove the accuser is lying, mistaken or that somebody else did it, bring them to the show cause hearing. You and your witnesses should dress in clean, neat conservative clothes. A suit and tie is not required. However, the more formal your clothing is, the better. No jewelry beyond a basic watch, wedding and engagement rings. Bling sends the wrong message.
Listen carefully to the instructions as to how the hearing will be conducted and follow those instructions. Don’t let your emotions get the better of you. Don’t react to the accusations, snide remarks, and sarcasm of the other side. Concentrate on making a clear presentation to the clerk-magistrate, if you plan to say anything at all. If the plan is to just listen, just sit quietly. Remember, the standard of proof at a show cause hearing is very low. Chances are that a criminal complaint will be issued. Don’t get upset if that happens. This is still the very beginning of the case. There will be plenty of chances to go on the offensive as the case goes forward.
You have no right to a court appointed lawyer at a show cause hearing. If you can, hire a lawyer to help you prepare for and go with you to the show cause hearing.
Regardless of how, by arrest or summons, a defendant is brought to court the first time, that first appearance at court will usually be for arraignment. Arraignment has four purposes. One, inform the defendant of the charges against him or her. Two, set bail. Three, schedule the next court date. Four, find out if the defendant will be given a court appointed lawyer, will be hiring his or her own lawyer or will be going forward without a lawyer.
When the case is called, by the clerk stating loudly: Commonwealth versus (name of defendant), the defendant walks forward to near the clerk’s bench (desk). The clerk will then read the charges, thereby officially informing the defendant of the charges on the record. The record is simply the audio recording and/or court reporter record made of all court proceedings. The reading of the charges is usually waived if the defendant already has a lawyer with him or her at the time of arraignment.
The judge will then tell the defendant about some of the legal rights the defendant has and will usually automatically enter not guilty pleas on all the charges. The judge will then ask the prosecutor, usually an assistant district attorney (ADA), if there is a bail issue. That means the judge is asking if the prosecution is looking to have the defendant post with the court some amount of money that will be taken by the state if the defendant fails to show up for the next court date or gets into more trouble while this case is pending. If the ADA says yes, the case will be placed on second call (postponed until a little later that morning) for a bail hearing. If the defendant does not already have a lawyer, the judge will assign one of the present public defenders, often referred to a bar advocates, to represent the defendant at the bail hearing.
If bail is not an issue, the judge will ask the defendant if he or she has, or will be hiring, his or her own lawyer or if he or she wants a court appointed lawyer or if he or she will be going forward without a lawyer. Do not go forward without a lawyer unless the judge is also offering to dismiss the charges right then on payment of court costs. That kind of offer by the judge, which is sometimes made on minor charges to defendants with little or no previous criminal record, is usually a good deal and worth taking. If you have any doubts, ask for a lawyer.
If you cannot afford a lawyer, tell the judge you want a court appointed lawyer. If you qualify, your case will probably be assigned to a lawyer in the court room right then. If you intend to hire a lawyer, but that lawyer is not there with you, tell the judge you need time to hire a lawyer. The judge will then set a further court date about two weeks later to give you time to hire a lawyer.
If your lawyer is there with you or you are given a court appointed lawyer, further court dates, often called pre-trial conferences, pre-trial hearings or status conferences, will be set. You will then be given a date slip with the next court date. You can then leave.
If there is a bail hearing, and you are ordered to pay money to the court to guaranty that you will show up for the next court date (called posting bail), you will not be able to leave until that money is posted. In fact, you will be sent to the county jail and kept there until the bail is posted or your case is finished! If you post bail, and show up every time you are supposed to show up and stay out of trouble, you will get the bail money back when the case is finished. If the judge decides you do not have to post bail, you will be released in exchange for your promise to return when told and further court dates will be scheduled. This promise to return is called your recognizance. You can then leave.
At some point during all these events at arraignment, you or your lawyer will be given some documents by the assistant district attorney. These documents contain important information about the case against you. If your lawyer is not there at arraignment, make sure you give these documents to your lawyer as soon as possible.
The Do’s and Don’ts
How should you handle arraignment? Be five minutes early. If you are going to be late, call the court and tell them before the time you were supposed to arrive. Dress in clean, conservative clothes. A suit and tie is not required. However, the more formal your clothing is, the better. No jewelry beyond a basic watch, wedding and engagement rings. Bling sends the wrong message.
No attitude! Even if you are completely innocent and this whole thing is an outrageous travesty of justice, in court you are humble, quiet and polite. If you speak to the judge, end every sentence with the phrase "your honor". Treat everyone, especially all court personnel, with respect and courtesy. Do not talk to, glance at, smile at, frown at or in any way acknowledge the existence of anyone on the other side of your case or remotely connected to the other side of your case. They will try to get you in trouble if they can. Do not talk to anyone in the court room while you are waiting for your case to be called. Do not read a newspaper, magazine, book or anything else. The only exception is that you can read the papers given to you in court by your lawyer, the ADA or any other court personnel.
If you have a lawyer, do everything your lawyer tells you to do. If at all possible, hold questions for the end. You and your lawyer cannot talk in the court room while court is in session. If you and your lawyer step into the hall to talk, you may miss the call of your case and have to wait to the end.
Once the arraignment is over, you and your lawyer will be involved in information gathering and decisions. While what your lawyer has to say is always very important, you have to make all the big decisions. You decide whether or not to testify at trial. You decide whether to take a plea bargain offered by the prosecution or whether offer a plea directly to the court. You should discuss these important decisions in detail with your lawyer and consider carefully you lawyer’s recommendations. However, it is your life. Once your case is over, your lawyer just moves on to the next one. You are the person that must live with the consequences of your decisions, including the decisions you make in the conduct of your case.
The Thrill of Discovery
Lawyers refer to the information that is passed back and forth between the prosecution and defense in the pre-trial phase of a case as discovery. Without getting into the fine details, the law requires the prosecution to turn all the information they have about the case, especially information that might help the defense, over to the defense. This required disclosure includes witness information, documents, photographs, objects, test results and reports. The law also requires the defense to turn over to the prosecution all witness information and all the documents, photographs, objects, test results and reports that might be used in evidence at trial.
If there are any disputes about this information exchange, the case may end up back in court to get orders from the judge about the information in dispute. However, in most cases, the so called discovery phase goes smoothly.
One Day You Are In (evidence) and the Next You Are Out
Perhaps the most important thing that happens between arraignment and a plea bargain or trial or dismissal is a motion to suppress evidence. By way of background, in order to get a conviction, a finding of guilty at trial, the prosecution must convince a judge or a jury that the defendant guilty by presenting evidence (witness testimony, documents, objects, etc.) in court at a trial. If any of that information was obtained by the prosecution, or anyone working for the prosecution, illegally then that information cannot be admitted in evidence at trial. As you have probably guessed, if the evidence that gets knocked out is critical to the prosecution’s case, the case could be dismissed.
Information is obtained illegally when it is obtained using methods that violate constitutional rights or other important laws. One example is if the police continue to question a suspect under arrest after he or she has asked to talk to lawyer. Any information obtained by continued police questioning after that request for a lawyer will probably be kept out of evidence, or suppressed, at trial.
Because the question of what information will or will not be allowed to be presented at trial is so important, it is often decided long before trial by a separate hearing on what is called a motion to suppress evidence. In every criminal case, lawyers look very carefully at the information that has been gathered by the prosecution and how that information was obtained. If there is even a chance that evidence was gathered illegally, your lawyer should write up a motion (request) to suppress evidence and file it with the court.
The court will hold a hearing, a kind of a mini-trial, on the motion to suppress evidence and decide whether that evidence is in or out. Even if a motion to suppress evidence is on the weak side, just filing it can result in negotiation of a better plea bargain.
To Plea or Not To Plea
The most important decision in any criminal case is whether to go to trial or do a plea bargain. As the name suggests, a plea bargain is a deal made between the prosecution and the defense in which the defendant agrees to change his or her plea, on one or more criminal charges, from not guilty to guilty, in exchange for an agreement by the prosecution to recommend to the judge a lesser punishment than would be asked for after a trial resulting in a conviction. The idea is for the defendant to get a “discount” on the punishment, or sentence, in exchange for not making the prosecution and the court do all the work that a full trial requires.
The reality of most criminal cases is that the police are not fools. Unless a police officer has an axe to grind or makes a serious mistake in an investigation, the police do not waste their time pursuing cases against innocent people. That is just a waste of time, effort and money. Consequently, most criminal cases end up being resolved by plea bargains. Getting a good plea bargain for a client is one the most important things a lawyer can do for a client.
The best plea bargains are obtained by lawyers who know the law, know the judges, have a good working relationship with the prosecution and have significant trial experience. Because a plea bargain is a negotiation without hard and fast rules, it is important that your lawyer know, and tell you about, just what is or is not possible. If the case against you is strong, you have a significant criminal record, and the victim is out for blood, you are not going to get as good a deal on the same charges as someone where the prosecution’s case is full of holes, the defendant is a first offender and the victim is not pushing it. Asking for the impossible may force you to trial. If the judge perceives that you, and your lawyer, have wasted everyone’s time with a needless trial, it will be reflected in your sentence.
Trials are conducted in accordance with complex and detailed rules of procedure and evidence. Your lawyer’s primary function is to conduct your trial according to the rules in such a way as to maximize your chances for a not guilty verdict on all charges. If there is a conviction, your lawyer will make sure the judge hears everything about you and the situation that could possibly help in getting the judge to impose a lower sentence.
The Order of Battle
If you have decided to have a jury trial, the kind of trial where a jury of six or twelve people decide if you are guilty or not guilty, the first thing that happens is picking the people that will be on that jury. A larger group of people, called the jury pool, will be brought into the court room. You and everyone else involved in your case will be introduced to the jury pool, the names of all the possible witnesses will be stated aloud and the judge will as the jury pool some questions. If any of the people in the jury pool know, you, the lawyers, the witnesses or answer the judge’s questions in certain ways, each of those persons will be asked to speak to the judge and the lawyers, or you if you have no lawyer, at the side bar. The side bar is just one side or other of the judge’s bench (desk) where the judge and lawyers go to discuss legal issues out the hearing of the witnesses and jury pool members.
When a potential juror goes up to the side bar, the discussion is about whether that person can be an objective juror. If that potential juror knows any of the people or witnesses involved in the case, he or she will probably be excused and removed from the jury pool for your case.
Once the jury pool has been narrowed down by these side bar discussions, those people that are left will be randomly picked to be on the jury in your case. You, if you don't have a lawyer, or your lawyer and the assistant district attorney handling the trial will then have the chance to ask each of the remaining potential jurors questions under oath. This questioning process is called voir dire. The extent and nature of this questioning depends very much on the facts and circumstances of the case. As each potential juror is questioned, you and your lawyer can ask the judge to remove any juror that you think, based upon facts about that juror, cannot be objective. If the judge agrees, the judge will remove that person from the jury. You and your lawyer can also remove a certain number of jurors without giving any reason, so long as the reason is not racial or other discrimination.
Once the jury has been picked, the judge will usually tell the jury a little about the case, how the trial will be conducted and what they are expected to do. The prosecutor, usually an assistant district attorney, will give an opening statement. The defense lawyer, or you if you don't have not lawyer, then gives an opening statement. After that, the witnesses testify and evidence is introduced. The prosecution goes first.
After the evidence phase of the trial is done, the defense lawyer, or you if you have no lawyer, gives a closing argument. The prosecutor then gives a closing argument. The judge then instructs the jury on the law that applies to the case and sends the jury to the deliberation room to decide the case.
The Jury is Watching
How should you behave during the trial? Try to remain calm. You are going to be nervous. This is normal and everyone there, including the jurors, expects you to be nervous. The best basic rule is to simply listen to the witnesses and take notes. This focus of your attention will help you be less nervous. You should also write down any comments you want to make to or questions you want to ask your lawyer. If you are constantly leaning over to say things to your lawyer, he or she will have a hard time listening to the testimony. It is critical that your lawyer pay close attention to the testimony and other evidence presented during the trial. Now and then, slide your written questions and comments over to your lawyer. He or she will look at them and may act upon them at that time. If not, talk to your lawyer during a break in the action about your concerns. Remember, the rules governing the conduct of a trial are complex. That is why you have a lawyer. If the lawyer does not do what you think should be done, there is a good chance what you are asking is not allowed by the rules. Your lawyer will explain this to you during breaks or at the end of the trial.
People on the jury listen to the testimony, look at documents introduced into evidence and watch everybody in the court room. As for other court appearances, dress in clean, conservative clothes. A suit and tie is not required. However, the more formal your clothing is, the better. No jewelry beyond a basic watch, wedding and engagement rings. Bling sends the wrong message. Do not comment out loud on what is being said. Do not roll your eyes, sigh, laugh or do anything else that distracts the jury and everyone else from hearing the evidence. Such behavior is considered immature and will make a bad impression on the judge and the jury.
START Brain Before PUTTING Mouth IN GEAR
If you are going to testify there are some basic rules to follow. Listen very carefully to each question. Think about the answer before you start talking. Give enough information to answer the question and stop. If the lawyer asking the questions wants more information about that topic, they will ask another question. If you hear the word objection, stop and wait for the judge to tell you that it is ok to answer the question or for the lawyer to ask you a different question.
Take your time. Lawyers will often try to hurry witnesses in hope of causing a mistake. Don’t get angry. Some lawyers will try to use sarcasm and other methods to get you angry. Don’t fall for it. It is just an act. Just continue to answer the questions as best you can.
I don’t know is a perfectly acceptable answer. No one has a perfect memory. Another lawyer tactic is to ask questions to which you probably do not know the answers. The purpose of this tactic is to get you nervous and get you guessing. Never guess. Estimates are ok so long as they are estimates, not guesses.
The Moment of Truth
When the jury has told the court officer that they have reached unanimous verdicts on each of the charges, everyone is brought back into the court room and the verdicts are announced. In Massachusetts the verdicts are announced by the clerk of the court. If all the verdicts are not guilty, the case is over and the defendant is free to go. If any of the verdicts are guilty, the case continues into the sentencing phase.
In Massachusetts, unlike the federal courts and many other states, sentencing usually happens right after the verdicts are delivered. If there is a good reason to delay sentencing, such as the need for information that could not be obtained any sooner, the judge will often agree to a delay. However, if the charge is serious and/or the defendant has a serious record and jail time is likely, the judge will probably order the defendant be held or post bail pending sentencing. If the defendant is held, he or she will receive credit on the eventual sentence for the time held. Credit is also usually given for time in jail by defendants who could not afford to post bail that might have been ordered.
Based upon information about you and the case, your lawyer will try to convince the judge to impose the lightest sentence possible. Nowadays, many crimes have minimum sentences built into the law. The judge cannot go below those minimums. Also, if you have already gone to jail in the past, this new conviction is likely to send you back to jail.
The likelihood of jail or other punishments depends on many factors including the seriousness of the charges, the facts and circumstances of the crime that came to light at the trial and the criminal record, of lack of the same, of the defendant. One of a lawyer’s most important jobs is to gather the right information, present that information to the judge and argue for the lightest sentence available under the circumstances.
SO SUE ME!?
CIVIL LITIGATION IN A NUTSHELL
People and businesses sue each other for a tremendous variety of reasons. Some examples come immediately to mind: someone hurt in a car crash suing the other driver; a plumber suing a customer for not paying the bill; a dispute between neighbors over the property line. Lawsuits are never fun. However, sometimes they are necessary. Please note that what is being discussed here does not include criminal cases, divorce or paternity cases, and modifications thereof, and certain specialized areas of the law, such as worker’s compensation or intellectual property cases. Those cases are discussed elsewhere on this web site or are handled by other attorneys. Please feel fee to contact me for additional information.
The (nearly) Free Ride
If you, or your business, are being sued, you may already have a lawyer available for almost nothing. If the lawsuit is accusing you of negligence, which is a fancy word for making a mistake that supposedly harmed someone else, and you have home owners, renters, automobile, general commercial or professional liability insurance, then there is a good chance that your insurance company will provide you with a lawyer and pay any judgment or settlement against you. All you might have to pay is your deductable. The first thing you should do if you are sued is to contact any property or casualty insurance companies with which you have, or recently had, an insurance policy.
If you are being sued, it all starts with the summons and complaint being served on you by a process server. You should respond by filing an Answer with the court, and sending a copy to the other side, within 20 days. If you have insurance that might cover this, contact your agent and/or the claims office for the insurance company right away. If not, start looking for a lawyer. If you can’t or don’t want to hire a lawyer, contact the lawyer representing the plaintiff and ask for more time to file the answer. They will usually give you more time.
Just the Facts Ma’am
If you are thinking about suing someone, the first thing you need to do is gather together all the documents and other things that are related to the problem an organize them. Chronological order will do for now. Next, you need write a summary of what happened that includes a time line. Then you need to talk to some lawyers. Most lawyers nowadays will give you the first meeting, about ½ to 1 hours, for free. Lay out your information and tell your story within that amount of time. You won’t get any advice if you talk through the whole meeting.
Answer the lawyer’s questions and take notes about what the lawyer says. Ask about the legal fees and how they are paid. If you are suing because you have been hurt in an accident, the lawyer might take the case on a contingent fee. A contingent fee is where the lawyer gets a percentage of any money generated by the lawsuit instead of getting paid on an hourly rate basis. If the suit you want to bring does not fall into the contingent fee category, find out what the lawyer charges per hour and try to get an estimate for the total cost of handling the case. Be aware that the legal fees for bringing a lawsuit vary dramatically from case to case. At this early stage, the lawyer estimate is just an educated guess.
Unless you already know who you want as your lawyer, you should meet with several before you decide. Pick someone who has experience in the kind of lawsuit you want to bring, is up-front about what it will or could cost and with whom you feel comfortable working.
If you have done your homework, as suggested above, then you will be able to give your lawyer most of the information needed to start suit right away. However, every case is different and, depending on the law that applies, more initial investigation may be needed. Once your lawyer has all the information needed, he or she will draw up a complaint, a summons and the various other documents that are needed to begin your case. The number and nature of the documents needed to begin a lawsuit can vary a great deal depending on the kind of case it is and which court will be used. Make sure you understand all the documents being used, especially any that you must sign.
The Battle is Joined
The papers needed to start the suit, along with a check for the filing fee charged by the court, must be filed with the court to begin the case. The court will assign a docket number and provide a date or dates on which various events in the course of the lawsuit should happen. Copies of the papers filed and a summons must be served on each of the persons or organizations named in your lawsuit. Your lawyer will arrange for a process server to do that job.
The person(s) and/or organization(s) being sued will usually have 20 days to respond. It is common for lawyers to informally agree on extra time for that response. The most common form of that response is called an Answer.
The Thrill of Discovery
Once the complaint has been served and an answer received, the next phase of most lawsuits is discovery. Discovery is the term used for the information gathering and exchange phase of a lawsuit.
Discovery is not done in every lawsuit. Simpler cases where the facts are not really in dispute might not require any investigation or formal information exchange. The court rules specify how you can get information related to your lawsuit.
One method of discovery is called a deposition. A deposition is questioning a witness, or potential witness in a lawyer's office long before trial. Any notary public, most lawyers are also notary publics, can summons a witness to answer questions. This is a great way to find out what a witness knows and how good a witness that person will be long before trial. As you might imagine, knowing in advance what a potential witness will say makes planning for the trial much easier.
Another discovery method is sending written questions, called interrogatories to other parties in the case. Those other parties in the case must answer those questions in writing. Interrogatories cannot be sent to witnesses who are not also parties (a plaintiff or a defendant) to the lawsuit.
Parties to a lawsuit also have the right to examine places and things, including medical examination of a person in some cases, that are important to the case. Examples of this are going on land where there is a border dispute or a medical examination of someone hurt in a car accident.
Try As We Might
Once the discovery phase of the case is complete, it is time for the trial. The practical reality is the vast majority of civil cases settle before, sometimes right before, trial. A settlement is just that. Everybody settles for something less than they want. The advantage of settling is that you remove the risk of something much worse happening at trial. No matter how strong the case, there is always a certain degree of unpredictability in a trial. A settlement gets rid of that risk in exchange for getting a less than perfect result. It has been said that the best settlement is one where everybody walks away a little unhappy.
If there is no settlement, then the case goes to trial. If it is a jury trial, the first thing done is picking the jury from a larger group of people called the jury pool. You and you lawyer will participate, along with the other parties in the case and their lawyers, in picking the jury. Please see the section on the trial on my criminal defense page for more detail on picking a jury. After the jury is chosen the judge will usually tell the jury a little about the case and will give the jury some preliminary instructions on the job of the jury and how the case will go.
Next thing is the opening statements. An opening statement is a description by lawyer, or by a party if the party does not have a lawyer, that lays out what that lawyer or party thinks their case will look like. It is often called a road map to help the jury make sense of what they are about to see and hear.
After opening statements, the plaintiff, the party that filed the lawsuit, will call witnesses to testify and will put exhibits into evidence. The court rules that govern questioning witnesses and putting exhibit into evidence are many and they are complex. A very big part of what lawyers do is study those rules so they can get the evidence they want in front of the jury at trial. If you don't know the rules, then you might not be able to get the information you need the jurors to know into evidence. If your important information is not presented to the jury, you are likely to lose the case.
After all the witnesses have testified and all the exhibits are in evidence, the lawyers, and/of those parties that don't have lawyers, get to speak to the jury in what is called closing argument. Closing argument is simply a summary of the case from the point of view of each party combined with a request that the jury do what that party wants. Usually, the party that started the case wants the jury to order the party or parties on the other side to pay money, to do something they have refused to do, like hand over a piece of property, or to stop doing somethng they have been doing, like trespassing on a disputed portion of land.
After all the closing arguments are done, the judge reads to the jury detailed instructions on the law that applies to the case. This step is often called charging the jury. The actual legal instructions that are given are called the jury charge.
After the judge is done giving the jury the instructions on the law applicable to the case, the jury goes to a room to discuss the case and decide what to do. This step is called jury deliberation. Once the jury has decided, they come back into the courtroom to announce their verdict. In Massachusetts, the verdict is in writing and is given by the for-person of the jury to the clerk of the court. The clerk then reads the verdict out loud to make it a part of the official record of the court.
Never Say Die
If the verdict does not go your way, and the reason it did not go your way is because somethiing was wrong about how the trial was run, you might be able to get the verdict overturned in an appeal. Appeals take a long time, are expensive and usually don't change anything. Even when you "win" an appeal, all you usually get is the chance to try the case all over again. Do not appeal the case unless it is absolutely necessary.
Catch Me If You Can
Even if the jury gives you gobs of money or otherwise does exactly what you want, the battle may not be over. The other side may refuse to pay or follow the orders of the court. Courts don't like to be disobeyed. The judge will usually be happy to help you grab assets, find the other side in contempt and even throw people in jail if they refuse to obey. However, a really determined opponent can slow things down, cost you time and money and, sometimes (by declaring bankruptcy, for example) make it impossible for you to collect. That is why one of the first things you do, when thinking about filing a lawsuit, is check out the ability of the opposing party to pay the money or obey the court order that you are looking to get. It makes no sense to sue someone for a million dollars is they are unemployed and living in a homeless shelter.
CAN'T AFFORD TO HIRE A LAWYER? MAYBE YOU CAN!
LIMITED ASSISTANCE REPRRESENTATION (LAR)
There is something new in Massachusetts. Now you can hire a lawyer for part of your case instead of the whole thing. Why is this being allowed now? Money, that's why.
Talk is Cheap, Until You Hire a Lawyer!
Hiring a lawyer is expensive. Often people will forego hiring a lawyer because of the cost. Those that can scrape together the money to hire a lawyer are often shocked and dismayed at how fast the lawyer's bill mounts up. Time in court, preparation, meetings, legal research, drafting documents all add to the cost. Until recently, you could not hire a lawyer just to go to court once, help you just with the papers for court, or just to give you advice for a case you wanted to handle yourself. Now you can.
Limited Assistance Representation (LAR) is allowed in some of the courts in Massachusetts. One of those courts is the Probate and Family Court. That means you can use limited assistance representation in divorce, paternity, child support, custody, parenting time (visitation), modifications, and many more cases. Lawyers that want to do LAR in Massachusetts have to qualify for it and sign up with each court that the lawyer wants to do LAR work in.
How Does It Work?
You can call around to lawyers and ask them if they do limited assistance representation or you can go on the Massachusetts Probate & Family Court website and click on the county where your case is, or will be, for a list of lawyers that do LAR in that court. Next, call up one or more of those lawyers and either make an appointment or discuss it over the phone. Many lawyers do not charge for the first appointment.
Once you decide on a lawyer, you and he or she will discuss your case. You will then decide just what you want the lawyer to help you with. You can have your lawyer just give you advice or draw up legal documents or go with you to court for just one day or any combination of the above. You and your lawyer will then both sign a contract that states what the lawyer will do and how much it will cost. Lawyers often require payment in advance, called a retainer, before they will begin work. Retainers are very common in cases that are in court or will go to court.
After the lawyer has done what you wanted him or her to do, he or she steps out of the case. You are done paying and the lawyer is done working. You can always hire your lawyer to do more in future, even on the same case, if that is what you want.
I do limited assistance representation in the Probate and Family Court located in Pittsfield, Massachusetts. This court "covers" all of Berkshire County. If you want to learn more about LAR or discuss having me help you, please call me, Peter C. Alessio, at 413-822-0704 or e-mail me at firstname.lastname@example.org.
On March 1, 2012 an entirely new law on alimony went into effect in Massachusetts. Not only does this law change everything about alimony for people getting divorced now and in the future, it will, in the near future, change everything for those who are already paying or receiving alimony.
What is the deal?
In general terms, the new law sets up various categories of alimony. Each of these categories has rules as to how and when they apply and each category has time limits for how long alimony can last. Another important feature of the new law is that alimony ends at the time of the payor's (the person paying the alimony) retirmenent. Cohabitation, living with someone without getting married, now suspends, reduces or terminates alimony. Lastly, the effect of this new law on old alimony cases is phased in over time.
GENERAL TERM ALIMONY AND DURATIONAL LIMITS
Alimony is now defined as periodic payment of support to an ex-spouse who needs the money to keep his or her lifestyle at or near the level that existed during the marriage. General term alimony ends upon the remarriage of payee (the person getting the alimony) or upon the death of either ex-spouse. Yes, believe it or not, until now alimony in Massachusetts could, in some cases, continue beyond the death of the payor and become an obligation of the payor's estate! Except in unusual cases, the amount of alimony should not exceed the payee's "need" or 30-35% of the difference between the parties' gross incomes.
The clock is ticking.
- If, at the time of divorce, the couple was married 5 years or less, alimony will last a maximum of one-half the months the marriage lasted.
- If the marriage lasted more than 5 years but less than 10 years, alimomy will last a maximum of 60% of the number of months of the marriage.
- If the marriage lasted more than 10 years but less than 15 years, alimomy will last a maximum of 70% of the number of months of the marriage.
- If the marriage lasted more than 15 years but less than 20 years, alimomy will last a maximum of 80% of the number of months of the marriage.
- If the marriage lasted more than 20 years then how long alimony lasts is up to the judge. However, the other restrictions, retirement of the payor, death of either party, remarriage of the payee, or cohabitation still apply.
The length of a marriage is defined as the number of months from the legal date of marriage to the date of service of a complaint for divorce, or other divorce like proceedings, that has been filed with a court. An important point is that the judge can "increase" the length of the marriage if the economic partnership began during a period of cohabitation before the legal marriage.
Cohabitation generally means sharing what is considered to be the primary residence of both parties. The judge can also look at:
- What the parties have said to each other and others about living together;
- The economic relationship between the parties (Is money being pooled? Is one party dependent on the other?);
- Things both have done to further or solidify an ongoing life together;
- Economic and non-economic benefits to one or both parties from the relationship;
- The fact that the parties appear as a couple to others.
As mentioned above, general term alimony ends when the payor reaches the usual or ordinary retirement age for full social security old age retirement benefits. It does not matter that the payor decides to keep working past retirement age. There are two exceptions.
Not so fast!
At the time of the original divorce judgment, the judge can, for "good cause shown" and documented in written finding, set an alinmony termination date different from the payor's retirement. Judges, who usually have way too much work to do, do not like to do written findings. Also, those written findings have to demonstrate good cause. That means a much better reason than, gee I would like to have alimony end sooner. The bottom line is that general term alimony is going to end on the payor's retirement unless the party looking for something different can convince a reluctant and skeptical judge that there is a very unusual and very good reason to do things differently in that particular case. Not easy.
Also, in an alimony modification, the judge can change the alimony end date for "good cause shown" based upon a "material change of circumstances" proven by "clear and convincing evidence" as shown in written findings. Even less easy.
This is alimony paid to an ex-spouse who is expected to become economically self-sufficient by a predicted time that is tied a future event. Examples are completing job training, graduating from an educational program, or receiving lump sum payment from their former spouse as part of the divorce. Rehabilitative alimony ends upon the remarriage of the payee, the occurance of the named event, or the death of either former spouse. This kind of alimony is supposed to last not more than 5 years.
There is always an out.
However, it can run longer if: (1) unforeseen events prevent the payee from becoming self-sufficient, or (2) the judge rules that the payee tried to become self-sufficient and the payor has the ability to keep paying without suffering an undue burden.
If the marriage lasted 5 years or less, the judge can chose to give money, either in a lump sum or periodic payments, to compensate one spouse for his or her economic or non-economic contribution to the financial resources of the other spouse. The classic example is the doctor who's loyal wife raised the kids and worked three jobs to get him through school only to be ditched in favor of a swimsuit model. This type of alimony may not be modified. Also, the income guidelines for alimony do not apply to reimbursement alimony.
If the marriage lasted 5 years or less, the judge has the option of giving the payee a lump sum or periodic payments, for not more than 3 years, for the purpose of transitioning the payee to an adjusted lifestyle or location as a result of the divorce. This form of alimony is best described as get yourself set up money.
A fresh start!
Transitional alimony cannot be modified, extended or replaced by another form of alimony. Transitional alimony, if in the form of periodic payments, ends upon the death of the payee or the date (not more than 3 years after divorce) set by the judge in the divorce judgment.
CHILD SUPPORT AND ALIMONY
The double dip or the double whammy?
The definition of income for alimony purposes is the same and that for child support. The definition of income for child support in Massachusetts is, basically, everything. However, there are two very important exceptions for alimony purposes. One, capital gain income, dividend income, and interest income from assets that were divided between the parties as part of the divorce is excluded from consideration in setting alimony. Two, and this is the big one, income that has been used by the judge to calculate child support may not be used again in setting alimony. In other words, unless you are making some very serious money, if you are paying Massachusetts guidelines child support, you will not be paying alimony. There is one caveat. Some judges have started calculating alimony before child support as a kind of "work around" in some cases. Be on the lookout for this if you make enough money to cause a judge to think your future ex-spouse should get more than "just" child support.
If alimony is ordered to start after the end of a child support order, that alimony is limited to the time periods applicable to rehabilitative alimony. If both child support and alimony is ordered, the combined order shall not exceed the longer of the alimony duration applicable at the time of divorce or rehabilitative alimony commencing at the time child support ends.
If the payor remarries, the income and assets of the new spouse shall not be considered in any attempt to modify alimony.
Income from a second job or overtime shall not be considered in any attempt to modify alimony if (1) the party works more than the hours of a single full time job and (2) the second job or overtime commenced after the original divorce judgment.
Is it time for a change? Maybe.
The fact of this new law is not grounds for going back to court to change or end alimony. However, there is one important exception. If the alimony order is question already exceeds the time limits for general term alimony in the new law, then you can go back to court on the following schedule:
- If you were married 5 years or less, you can file a complaint for modification on or after March 1, 2013;
- If you were married more than 5 years but less than 10, you can file a complaint for modification on or after March 1, 2014;
- If you were married more than 10 years but less than 15, you can file a complaint for modification on or after March 1, 2015;
- If you were married more than 15 years but less than 20, you can file a complaint for modification on or after March 1, 2016;
- If you were married 20 or more years, you are going to have to come up with another reason that alimony should be changed.
- Also, recent court decisions have severely limited the ability of those with older alimony orders to go back to court under this law and eliminate alimony after retirement. There is an ongoing effort in the state legislature to undo these court imposed limitations. Stay tuned!
The big exception to the above is that any payor who is eligible for full social security old age retirmenent, or will become eligible within 3 years of the efective date of the new law (March 1, 2012) can file a complaint for modification on or after March 1, 2013.
If, at the time of the divorce, the parties agreed that their judgment was not modifiable or that the terms regarding alimony would survive the judgment as an independent contract, you are stuck except in the most extreme cases.