The Law Office of Peter C. Alessio, Pittsfield, Berkshire County, Massachusetts

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, then odds are there is a child support order as part of your divorce judgment.  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.  

Judgment Modification and Contempt

IS IT TIME FOR A CHANGE?
MODIFICATION OF DIVORCE AND PATERNITY JUDGMENTS
Back to the Future

As I stated above, things change. Even those divorce judgments based upon a thorough and well written agreement, commonly called a separation agreement or a marital settlement agreement, can’t predict the future. Jobs are lost and new jobs found. Health insurance goes up.  Day care costs may go down as children get older.


If things change enough, what was a fair and workable child support amount at the time of the divorce may become a crushing burden to one ex-spouse and an unfair windfall to the other. Fortunately, those parts of a divorce 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 courts will order as child support unless someone comes up with a very good reason that the guidelines support number is no good.


If the guidelines calculation now results in a child support amount that is at least 20% higher or lower than the amount being paid under the old order, then the judge is very likely to change the child support. 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 to the need for a change or the proposed new child support amount, 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 the husband and wife had dependent children at the time of the divorce, the 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 reasonable parenting time (visitation) for the father 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, parenting time, or anything related to them, unless the judge believes that the change is in the child’s best interest. Also, as with other types of divorce 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 with regard 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 parent 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 divorce, is the children 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 divorce judgment, you are wasting your time. If hindsight has convinced you that what you agreed to, or the judge ordered after trial, at the time of the divorce is not what you want, there is little you can do. Remember, before you are going to get a judge to modify the divorce judgment you must convince the judge that since the divorce, there has been a material change of circumstances and the change in custody, visitation, 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, visitation, 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 the what new custodial, visitation, or parenting schedule changes are necessary to protect the child(ren).


Collateral Damage

Very often, requested changes in custody, visitation, 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, visitation, 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.



RESISTANCE IS (USUALLY) FUTILE
CONTEMPT PROCEEDINGS IN DIVORCE 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 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 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 your 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 95” 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 judge 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 provisions 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.


Escape Clause.

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.


Paternity?

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.


Peter C. Alessio

attorney at law