Can You Get Retroactive Modification of a Support Order?

                A question that is often asked of our Law Office is whether a party can seek a credit for child support he or she had been ordered to pay, but for a time period during which they had assumed primary custody and financial support of the child or children for whom the support order was established.  The general rule is found in Massachusetts General Laws, chapter 119A, section 13(a), which states that a retroactive child support modification of this kind cannot be granted by a Judge, except for any period during which there is a pending complaint for modification. In other words, if one assumes custody and financial responsibility of a child, it is his or her burden to file a Complaint for Modification and request a change to the child support order. Otherwise, a court cannot grant a retroactive credit for any support paid prior to the date of filing of the Complaint. 

              On November 22, 2016, the Appeals Court held that there is a very specific and limited exception to this rule. In Rosen v. Rosen, the Court held that a judge can grant and apply a credit to offset a child support arrearage (amount owed) during a period of time when there was no pending complaint for modification if the following circumstances are met:

“[T]he support payor must demonstrate that (1) the support recipient agreed (a) to transfer custody of the child to the payor for an extended period of time not contemplated in the original custody order, and (b) to accept the payor’s direct support of the child as an alternative method of satisfying the payor’s child support obligation; (2) the custody transfer was not the result of duress, coercion, or undue influence exerted by the payor against either the recipient or the child; (3) the payor provided the child with adequate support and maintenance while the child was principally domiciled in the payor’s home; (4) the recipient was relieved of supporting the child during the period in question; (5) the alternative support arrangement was not contrary to the child’s best interests; and (6) granting a credit to the payor for his or her direct support of the child would not result in injustice or undue hardship to the recipient.”

                While it is always best to seek relief directly from the Court via a Complaint for Modification if there are any changes to the custody or support agreement, the holding in Rosen v. Rosen provides much needed relief for those parents who assume responsibility for their child during extraordinary circumstances. It also encourages parties to put the best interests of their children first, without fear that they will be found in contempt for failure to continue paying child support to a parent who has voluntarily transferred custody of a child.

              If you have questions regarding your custody or support order, contact our Law Office today to schedule a consultation. 

(c)2016 by Law Office of Leila J. Wons, P.C. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Does the Cohabitation Provision of the Alimony Reform Act Apply Retroactively?

At the end of July 2016, in Brumleave v. Ouellette, the Appeals Court decided the issue of whether a petitioner could seek a modification of alimony based solely on his ex Wife's cohabitation. While the Alimony Reform Act of 2011 allows for modification and termination of alimony should the recipient cohabitate for a period of 3 months or more, this provision does not apply retroactively. In other words, because the parties entered into their Separation Agreement prior to the Alimony Reform Act taking effect in 2012, the ex-husband cannot rely on it when seeking that his alimony order be modified or terminated. Instead, he has to show that a material change in circumstances occurred, that would warrant such a modification. For example, the Petitioner could show that due to his ex-Wife's cohabitation, her financial needs had decreased materially. Unfortunately for the Petitioner, the Wife was already cohabitating at the time that the alimony order was initially set, and her income subsequently decreased when child support terminated.

As such, the Appeals Court held that it was improper for the trial judge to reduce the Petitioner's alimony obligation from $1,000 to $550 per week.

The payment of alimony and whether it makes sense in a particular case is a complex issue worth speaking to an experienced attorney about. More and more information and guidance is being provided by the higher courts, which allows attorneys to better inform their clients. For this reason, it is worthwhile to speak with an attorney about your alimony questions, whether you are going through the divorce process or are seeking a modification of a prior judgment.



(c)2016 by Law Office of Leila J. Wons, P.C. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Increasing the Length of Marriage for Alimony Purposes when the Parties have Cohabitated or had an Economic Marital Partnership Prior to Marriage

On June 15, 2016, the Supreme Judicial Court issued a decision on Ellen Duff-Kareores v. Christopher Kareores, in which they addressed the issue of calculating the length of a marriage for purposes of alimony under the alimony reform act.

This case was very unique, in that it involved parties who had divorced in 2004 after approximately 9 years of marriage, began cohabitating again in 2007, remarried in December 2012 and commenced divorce proceedings just 6 months later.  Under the alimony reform act (M.G.L. c. 208 § 48), the Trial Court Judge has the authority to extend the length of the parties’ marriage “if there is evidence that the parties’ economic marital partnership began during their cohabitation period prior to the marriage.” Since the terms “economic marital partnership” and “cohabitation” are not defined in the statute, the SJC weighed in on what factors the Judge should consider.

The Supreme Judicial Court looked at a related provision of the alimony reform act, which discusses the circumstances under which alimony may be reduced, terminated or suspended upon the cohabitation of the recipient spouse, when the spouse paying alimony shows that the recipient has maintained a common household with another person for a continuous period of at least 3 months. M.G.L. c. 208 § 49 (d).  This provision further provides that in order to determine whether or not a former spouse is maintaining a “common household”, the Court can consider the following factors: 

(i) oral or written statements or representations made to third parties regarding the relationship of the persons;

(ii) the economic interdependence of the couple or economic dependence of [one] person on the other;

(iii) the persons engaging in conduct and collaborative roles in furtherance of their life together;

(iv)  the benefit in the life of either or both of the persons from their relationship;

(v) the community reputation of the persons as a couple; or

(vi) other relevant and material factors.

                                                                                      G. L. c. 208, § 49 (d) (1)

Using the above definitions, as well as other considerations, the SJC concluded that only where the parties share a common household and are engaged in an economic marital partnership that a judge has discretion to increase the length of a marriage, or to suspend, reduce or terminate a general alimony award, and that the judge must consider the above factors in determining the definition of a “common household”, in order to ascertain whether the parties were participating in an economic marital partnership.

The Court further noted that even though the alimony reform act states that alimony cannot be reinstated after the recipient’s remarriage (except by the parties’ express written agreement), this doesn’t apply when the recipient has remarried or began cohabitating with the original, payor spouse.

Last, the Court addressed the question of whether or not the Judge could deviate in the calculation of the length of marriage, above and beyond consideration of the above factors (for example, could the Judge determine on his own that the length of the marriage for alimony purposes would be longer than the amount of time that the parties were actually married or cohabitating and engaged in an economic marital partnership?)  The SJC determined that no, the alimony reform act does not provide a Judge with discretion in calculating the length of a marriage other than as outlined above. The Judge can, however, deviate from the amount and duration of alimony payments, under M.G.L. c 208 § 53 (e).

SO WHAT DOES THIS MEAN FOR YOU?

First, even if you don’t remarry your ex-spouse, this holding would apply to any situation where the parties cohabitated and were engaged in an economic marital partnership prior to marriage, and alimony is at issue. It doesn’t mean that a Judge must extend the length of your marriage when there is evidence of cohabitation and an economic marital partnership; this is ultimately in the Judge’s discretion. However, the Judge must consider the definitions of cohabitation when making a determination of whether or not it actually occurred.

Second, this may be another incentive to consider a premarital (prenuptial) agreement. When negotiating the terms of a premarital agreement, the parties can discuss the factors that will be considered in setting the length of their marriage in the event of a divorce. While this language in and of itself won’t be controlling at the time of divorce (the court has to consider other factors when determining the validity of a premarital agreement), it can certainly assist the parties in planning their financial futures, and can show their intent.

            

             To discuss your alimony questions or concerns, contact Attorney Leila J. Wons for an initial consultation. 

(c)2016 by Law Office of Leila J. Wons, P.C. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

New Family Drug Court

On June 17, 2016, Trial Court Chief Justice Paula Carey, Chief Justice of the Probate and Family Court Angela Ordonez and Commissioner of Probation Edward Dolan attended the official opening ceremony of the Commonwealth's first Family Drug Court. The ceremony was held at Greenfield Community College and the court will be operated through the Franklin County Probate and Family Court. 

The opening of this court looks to address the growing problem of opioid addiction in Western Mass, and will help families deal with custody and parenting cases in which substance abuse is an issue. This is a voluntary program, and it will hopefully be received well by the community. It is possible that if this program is successful, other similar Drug Courts will be established in counties further east. 

For counties that do not have a Drug Court, parties are still encouraged to address issues of substance abuse through their local Probate and Family Courts. It is especially important to note that a parent could be found guilty of neglect by the Department of Children and Families if they do not take affirmative steps towards ensuring the safety of their child from a parent with substance abuse. As such, if a parent suspects drug abuse by their partner or child's other parent, it is imperative that it be addressed as soon as possible. 

(c)2016 by Law Office of Leila J. Wons, P.C. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Can You Waive Child Support?

We are often asked if the parties to a divorce or child custody matter can agree to waive child support for their children. The answer to this is not as black and white as one may think, and it’s important to understand Massachusetts law regarding child support prior to making a final decision.

Child support is governed by M.G.L.c. 208, sec. 28 and the Massachusetts Child Support Guidelines (found here: http://www.mass.gov/courts/selfhelp/family/child-support-guidelines.html). The guidelines are comprehensive and easy to read, providing over 20 different sources of income that would be included in one’s income for calculating child support. In short, any form of income is includable as child support, even if it is not reported to the IRS, with the exception of income that is need-based. Once you have determined the income attributable to each party, you run the guidelines to figure out the child support order.

Often, when parents have shared physical custody and earn comparable incomes, the resulting child support order will be minimal, and the parties may elect to waive support altogether, while including language in their agreement that they will share the children's extracurricular and uninsured medical expenses equally, as well as provide for everything the children need when the child is with him/her. Other times, the child support order is more substantial (either because one party has primary physical custody or because there is a disparity in income), but the parties agree to offset the child support by paying for the children’s other expenses disproportionately. In addition, the parents may agree to share certain expenses that would not automatically be ordered by the court (like summer camp, after-school care, hair cuts and clothing). Another popular option is to characterize the payment of support as alimony instead of child support, due to the tax advantages that paying alimony can have. This is especially beneficial when children are older and alimony is likely to be ordered in the future, as it saves the parties from having to go back to court in a few years to recalculate support. 

In the above scenarios, child support appears to be waived, but there are provisions in place for the children’s maintenance. These are common scenarios that would likely be approved by a court, as they ensure that the children’s needs are met, and that the children enjoy a similar lifestyle in both parent’s homes.

What will not be approved is an agreement that waives child support without making other provisions for the children’s maintenance. This is because public policy dictates that dependent children be maintained as completely as possible from the resources of their parents. If one party isn’t paying support and is not otherwise providing additional resources for the child, then that party is not adequately supporting his or her child.

            

            Further, parents can never permanently agree on a child support order (or agree to permanently waive child support).  A parent can always go back to court and try to modify the child support order, or establish a new one if child support was previously waived. This is because a parent may not bargain away the rights of their children to support from either one of them. See Okoli v. Okoli (No. 1), 81 Mass.App.Ct. 371 (2012). As such, a modification of child support can be obtained even if the parties have put into their agreement that they are waiving child support.

                

             If you need to establish or review a child support order, contact Attorney Leila J. Wons to schedule a consultation at her Westborough office and review your child support needs and rights. 

(c)2016 by Law Office of Leila J. Wons, P.C. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Should I Ask the Department of Revenue for Help with my Child Support Matter?

Often, parents need help in establishing or enforcing a child support order, which may include establishing paternity. When this is the only assistance that they need, it may be beneficial to contact the Massachusetts Department of Revenue, who have Attorneys available to assist parents with these matters. As noted on their website, DOR can:

• Determine what services are available and best suited to establish paternity and establish, enforce and modify a support order.
• Collect support payments.
• Send child support to every parent or guardian that has a child support order.
• Obtain or enforce an order for medical insurance coverage.
• Upon request of either parent, review support orders for consistency with child support guidelines and determine if it might be appropriate to ask the court to modify the amount of the child support order and assist in processing requests for modification of the order.
• Select and implement appropriate enforcement remedies, such as bank levies, tax refund intercepts and credit reporting, to collect overdue support if the case meets our criteria for the enforcement action.
• Locate the other parent in order to establish paternity or enforce/modify a child support order.
• Establish paternity if a child was born out of wedlock.
• Arrange for paternity testing for both parents and the child.

In addition to the above, DOR has a program called the Payment Intercept Program (PIP), which identifies pending insurance claim payments owed to parents who have child support debts and intercepts them. As such, it sends the money to the parent who is owed support, and decreases the chances of that family needing public assistance.


To obtain DOR services, complete their application here: DOR Application. You can also find more information on DOR and their programs at this link: Massachusetts Department of Revenue Child Support Enforcement.


REMEMBER: DOR cannot help you with issues relating to parenting time and custody, and they do not represent the parent who is being asked to pay child support. If you can, it's best to retain an experienced Family Law Attorney to assist you in those matters.

(c)2015 by Law Office of Leila J. Wons The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."

Communicating Effectively With Your Ex

For many couples who have broken up, separated or divorced, communication may be very difficult. This is especially true when children are involved, and the parties have to communicate regularly regarding parenting time, payment of expenses and child support. Often, communications become tense and difficult when one of the parties introduces a new significant other in the mix. Suddenly, what once was a working relationship or even a friendship is now constant bickering between two people who want nothing to do with each other.

When two people have to communicate for the sake of their children or in order to carry out the terms of their agreement or judgment, but they can't get more than two sentences out before erupting in a screaming match, what can they do?

First, restrict communication to writing, except in emergencies. Putting things in writing not only gives the parties a few more minutes to consider what they're "saying" before pressing the send button, but it also keeps a written record for everyone in case disagreements come up over what was discussed.

Next, keep communications limited to what the parties have in common. If they have to check in regularly regarding the children's activities, then restrict e-mails and text messages to only those topics. If the parties have to finalize a QDRO and need to exchange financial information, limit communications to the documents and information needed. The parties should not use this opportunity to rehash what happened in the divorce or custody proceedings, or to opine about the other party's new relationship status. Keep communication concise and to the point.

Last, keep the children out of it. Because it's so important, I'll note it again: KEEP THE CHILDREN OUT OF IT. Neither party should use the children as messengers to request schedule changes or to ask about a missing child support check. The children did not get divorced/break up; the parties did. They should not have to feel uncomfortable mentioning their other parent, or making special requests. It's not their fault that the parties can't get along, and they should never have to question if one parent is better than the other. It is also unfair to the other party for a child to make a request, as it makes that parent look "bad" or "mean" if they don't agree.

When the parties cannot follow the above tips, it may be helpful to file a Complaint for Modification (or a Temporary Order, depending on where the parties are in the process) and request that the communication guidelines be made an actual order or judgment. That way, if one party refuses to communicate appropriately, they can be found in Contempt and assigned certain penalties such as the loss of decision making power.

Another option is to obtain the services of a Parenting Coordinator who can act as a mediator or referee. However, both parties must agree to use a Parenting Coordinator, and the costs can quickly add up if the parties are constantly in disagreement.


Communicating effectively with an ex can be very difficult and draining. But if both parties commit to following the above guidelines, they can make significant progress towards keeping communications civil, relevant and concise.


(c)2015 by Law Office of Leila J. Wons The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."