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."

Can You Modify a Child Support Order From Another State?

It is very common for parents to move to another state some time after a court issues a child support order.  The question then arises as to whether or not that parent's new home state can modify the existing child support order. On February 23, 2015, the Supreme Judicial Court issued its decision on Cohen v. Cohen,  which explains Massachusetts courts' jurisdiction over existing child support orders and whether or not those orders can be modified here.

Under the Uniform Interstate Family Support Act (UIFSA), Massachusetts has the power to enforce child support orders from other states. However, it cannot modify an order if the state issuing the child support order still has continuing and exclusive jurisdiction. To know whether or not the issuing state has continuing and exclusive jurisdiction, you must ask 2 questions:  First, does either parent or the child still reside in the issuing state? Second, if at least one of them still lives in the issuing state, have the parties provided written consent for Massachusetts to take over jurisdiction?

In Cohen, the parties had a child support order out of California. While the Father eventually moved to Massachusetts, the Mother and child remained in California. As such, California retained exclusive and continuing jurisdiction over the child support order. The SJC found that, although Massachusetts had the power to enforce the California child support order (by having the Massachusetts Department of Revenue garnish the Father's wages and by ordering attorney's fees for the Husband's failure to comply with the order) Massachusetts did not have the power to modify the order. For example, a Probate and Family Court in Massachusetts had changed the original order to include payment for uninsured medical expenses and college tuition, which was wrong.

If you have questions about an existing child support order, please contact Attorney Leila Wons to discuss your options and review your matter.


(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."

Can a Judge Order you to Use a Parent Coordinator?

Earlier this month, The Supreme Judicial Court issued its decision on Bower v. Bournay-Bower, which addressed the Probate and Family Court's powers as they relate to the appointment of a Parent Coordinator.

A Parent Coordinator is a trained mental health or legal professional who helps parents with the implementation or creation of a parenting plan, who helps resolve disputes as they arise, and who can assist parents in understanding what is in the children's best interests.  Many people include a provision in their Agreements stating that they will use a Parent Coordinator prior to filing court actions. This is done in an effort to resolve matters quickly and more affordably, because a Parent Coordinator will often be available on relatively short notice to assist with everyday or urgent conflicts, and the parties can share the cost of the Parent Coordinator equally or in proportion to their incomes.  In some circumstances, the parties specifically agree to give the Parent Coordinator the power to make binding decisions that they must follow unless and until they obtain a different decision from the Court.

Prior to the Bower decision, it was unclear whether or not a Probate and Family Court Judge could order the parties to use a Parent Coordinator (if they did not agree to use one), and to what extent the Parent Coordinator could be involved. The Bower case involved a divorced couple who was ordered by their Judge to use a Parent Coordinator, and to have that Parent Coordinator make binding decisions that they had to follow unless and until they obtained a different decision by the Judge.

Through Bower, the SJC made it clear that a Probate and Family Court Judge possesses the authority to appoint Parent Coordinators in appropriate circumstances (a) in order to  conserve limited judicial resources and aid in the court's functioning and capacity to decide cases; or (b) if it is necessary to ensure the best interests of the children in a divorce or custody-related proceeding.  However, unless both parties agree, a Judge cannot give the Parent Coordinator the power to make binding decisions that the parties must abide by.

The SJC explained that forcing a party to be bound by a Parent Coordinator's decision would essentially be taking away that party's right under Article 11 of the Massachusetts Declaration of Rights, which grants an individual the right to "seek recourse under the law for all injuries or wrongs to persons, property, or character."  In addition, preventing a party from filing an appropriate Complaint or Motion in the Probate and Family Court until the Parent Coordinator had first made a binding decision would also infringe on the party's right to "seek recourse under the law."

The SJC also addressed situations that may involve domestic violence, and how it would be inappropriate and potentially dangerous to force a party to wait until a Parent Coordinator makes a binding decision before filing appropriate documents in court. It would be forcing a party to choose between safety and access to the courts.

Another concern cited by the SJC was the financial implication of forcing a party to use a Parent Coordinator. There are currently no regulations regarding the training, licensing or monitoring of Parent Coordinators, or the fee structures. As such, Parent Coordinators are often very expensive, and there may be situations where it would be inequitable and even financially detrimental to force a party to use a Parent Coordinator in lieu of going to Court.

In its decision, the SJC referred the matter to the Probate and Family Court to "review and consider the promulgation of a rule governing the appointment of parent coordinators. A rule will help to ensure that procedural and substantive safeguards are in place in any appointment of a parent coordinator to address issues including the selection of a parent coordinator, the points in proceedings when parties may be referred to a parent coordinator, the nature and scope of the authority that may be granted to a parent coordinator, and issues related to the apportionment and payment of the parent coordinator's fees."   In other words, the SJC wants there to be strict guidelines on the use of Parent Coordinators. 

(c)2014 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."

Extracurricular Acitivites: How Many and Who Pays?

With the Olympics come the sentimental commercials of Olympians thanking their parents for helping them become the athletes they are today.  We see images of these young Olympians learning how to walk on a ski slope, falling down over and over, and being woken up in the very early morning hours for practice. Not every child will become an Olympic athlete, and not every family will even consider the possibility of making such a commitment.  So what happens when two divorced or never-married parents have differing opinions on the extracurricular activities that a child will participate in? Who pays for the cost of these activities?

 As with many other decisions to be made regarding children, a Judge will determine what is in the child's best interest when deciding whether or not a child should continue or start an activity, and who should be responsible for the cost. In addition to looking at the history of involvement in a certain activity, the court will also consider the impact – if any – that the activity may have on parenting time, as well as the income of the parties and the cost of the activity.

 In many situations, the parties include in their agreement language that allows the children to participate in agreed-upon extracurricular activities, with agreement not to be “unreasonably denied.” For those activities that are agreed-upon, the parties include language stating that they will share equally the cost of those activities. The question, then, is “what is reasonable?”  The answer to this question will vary with each situation, but some good rules of thumb are:  A child should be able to participate in extracurricular activities, but those activities should not significantly infringe on parenting time. In addition, if a child had engaged in an activity throughout the parties’ relationship, the child should be able to continue doing that activity. With regards to payment, the parties should share the cost of reasonable activities, so long as the parties’ incomes have been equitably addressed via child support or alimony.  The key is finding balance between these rules. So if a child had always done one sport per season, it would be reasonable for the child to continue to do so. However, if the child had always done three activities at once, and those activities took significant after-school time and weekend-time, it may not be reasonable to keep the child enrolled in all three activities. Further, if the application of child support still results in one party having significantly higher assets than the other, it may not be equitable for the parties to share in the cost of extracurricular activities.

While it is impossible to predict what a child will be interested in (or talented at), adding language into an agreement that sets parameters for the number of and payment for activities can save the parties from future court battles and headaches, Olympic athlete or not!  


(c)2014  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."

Parenting Time During School Vacations

As children get older and start attending school, parents who are not living together will have to determine how/if they will amend their parenting plan to accommodate school vacations (if a provision for same has not already been included in a temporary order or judgment). There are many ways to divide vacation time between parents, and there is no "wrong" answer so long as the parents are doing what is in the children's best interest. Most parents will alternate school vacations each year, so that in odd years parent A takes the children from Monday through Friday while parent B takes the children in even years. Other parents may decide to split the vacation in half, so that  parent A has the children from the last day of school through mid-week, while parent B takes the children from mid-week through the Monday morning that school reconvenes.

For the most part, agreements or court orders made regarding vacations supersede the regular parenting schedule. So if during the school year parent A has the children every other weekend from Friday evening through Monday morning and for an overnight each Wednesday, but the parties have agreed to alternate school vacations each year, parent A may not have any vacation time with the minor child(ren) if it is not his or her vacation year.  While this may seem unfair at the time, it ends up working out over the years. However, if going so long without seeing a parent would be detrimental to the child(ren), the parents can agree to include a mid-week visit with the non-vacation parent, or to give that parent the weekend immediately following or preceding the vacation.

February school vacation is fast approaching, and it is best to reach an understanding of how the vacation week will look like as soon as possible. If the parties are unable to come to an agreement, a party can seek assistance from the court.


(c)2014 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."

When to use the Department of Revenue

When deciding on a child support amount, the parties must also determine whether or not they want to use the Department of Revenue (DOR) for collecting and distributing payments. While going through DOR may not work for everyone, I usually recommend it. DOR keeps track of every payment received, calculates interest, and can take necessary enforcement steps if the payor is not current on his/her payments. For example, DOR can have the payor's driver's license suspended, can intercept tax returns, can garnish wages, or can even have a passport revoked.

Having DOR involved also makes it easy to present to a judge a detailed report of every payment made, in the event that the parties return to court on a Complaint for Contempt or Modification. This is much easier than combing through bank statements and deposit slips to figure out the arrears amount. 

If you decide not to go through DOR initially, you can always request DOR's services at a later date, unless a court order specifically prevents you from doing so. As there are DOR offices in many courthouses throughout Massachusetts, it is fast and easy to obtain the necessary paperwork and submit it.

Go to the Department of Revenue-Child Support Enforcement website to learn more.

(c)2014 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."

What is Alimony Reform All About?

On September 26, 2011, Governor Deval Patrick signed an act reforming alimony in the Commonwealth, the "Alimony Reform Act of 2011". This alimony reform has significant repercussions on currently existing alimony orders, as well as future alimony judgments, and will become effective March 1, 2012.

The following is a breakdown of the new alimony laws and what they mean.  However, this is not a complete outline of the Alimony Reform Act! If you have a currently existing alimony order or are interested in learning more about how alimony may or may not apply to your particular situation, please schedule an appointment with Attorney Wons.

ALIMONY AND PROPERTY
In determining an equitable distribution of property between parties in a divorce action, the court shall also consider the alimony order, if any, that is established.

TYPES OF ALIMONY
There are 4 types of alimony that can be ordered:

• General Term Alimony (what most people think of when we speak about alimony, i.e. periodic payments for a set amount of time);

• Rehabilitative Alimony (periodic alimony payments of not more than 5 years for a spouse who is expected to become economically self-sufficient by a set time, i.e. when they finish school or training);

• Reimbursement Alimony (periodic or lump-sum alimony payments in a marriage of 5 years or less meant to compensate a spouse for their contribution to the other spouse's financial resources, i.e. payments made to a spouse for taking care of the children and the home while the payor spouse earned his or her degree); and

• Transitional Alimony (periodic or lump-sum alimony payments lasting no more than 3 years in a marriage of 5 years or less to enable the recipient spouse to transition into an adjusted lifestyle, i.e. to enable a spouse to find suitable housing once the marital home is sold).

DURATION OF ALIMONY
Rather than leave the duration of alimony to the sole discretion of the courts, judges now have to follow general guidelines when issuing General Term Alimony:

• For marriages of 5 years or less, alimony cannot last for longer than 50%  of the number of months the parties were married (2.5 years max, or 30 months);

• For marriages of 10 years or less, alimony cannot last for longer than 60% of the number of months the parties were married (6 years max, or 72 months);

• For marriages of 15 years or less, alimony cannot last for longer than 70% of the number of months the parties were married (10.5 years max or 126 moths);

• For marriages of 20 years or less, alimony cannot last for longer than 80% of the number of months the parties were married (16 years max or 192 months);

For marriages of over 20 years, the court still has the discretion to determine how long alimony payments will last. However, in all instances alimony must terminate upon the paying spouse's attainment of the full retirement age (when he or she is eligible for the old-age retirement benefit under the US Old-Age, Disability, and Survivors Insurance Act.)

MODIFICATIONS OF ALIMONY JUDGMENTS
Notwithstanding the above guidelines, parties may seek modifications of their alimony orders at any time if a material change in circumstance occurs. In addition, the court may order that alimony continue after retirement age for "good cause shown". It will be interesting to see what the courts determine constitutes said "good cause", though I would think it applies to situations where one spouse receives substantially more assets that the recipient spouse from their respective pensions, social security or retirement accounts.

Although the new law becomes effective March 1, 2012, parties seeking modifications of existing alimony orders because the terms of their judgments exceed those set forth herein, cannot do so right away. Instead, they must follow these timelines:

• For marriages of 5 years or less, the parties may file on or after March 1, 2013;

• For marriages of 10 years or less, the parties may file on or after March 1, 2014;

• For marriages of 15 years or less, the parties may file on or after March 1, 2015;

• For marriages of 20 years or less, the parties may file on or after September 1, 2015.

• Regardless of these time limits, anyone reaching full retirement age on or before March 1, 2015 may file their Complaint for Modification on or after March 1, 2013.

ALIMONY AND CHILD SUPPORT
While a party can receive alimony at the same time as he or she is receiving child support, there are now limits for how long these two can last: The combined duration of alimony and child support cannot exceed the longer of 1) the length of an alimony order as set out above or 2) rehabilitative alimony that commences when child support terminates.

For example, if a couple with a 5 year-old child gets divorced, child support will likely be issued and continue for another 17 years (until the child graduates from college). If this couple had been married for 5 years or less, alimony can only last for a maximum of 2.5 years or however long a court would deem appropriate for the recipient spouse to become rehabilitated.

(c) 2014 The Law Office of Leila J. Wons. The information contained herein 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 and does not constitute legal advice.
In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."