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."

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."

SSDI and Child Support

On August 1, 2013, the Massachusetts Child Support Guidelines were amended, once again. Amongst the changes made was the inclusion of specific language regarding the treatment of Social Security or SSDI benefits, as well as any such benefits received by a child for whom support is being calculated. On July 2, 2014, the Appeals Court affirmed the judgment of Schmidt v. McCulloch-Schmidt, which dealt with the treatment of such benefits.

In a nutshell, here's how the courts will treat Social Security benefits, SSDI benefits or dependency benefits received for a child:

1. Social Security and SSDI benefits received by a parent will be considered as part of that parent's income. These benefits are different from means-tested public assistance benefits like SSI or SNAP, which are NOT included in the parent's income. In other words, if a parent receives benefits due to financial need, those benefits are excluded from the child support calculations. If a parent receives benefits due to age or disability, those benefits ARE included in the support calculations.

2. In many instances, a child will receive a dependency benefit due to his/her parent's own benefits. For example, a parent receiving SSDI (Social Security Disability Income) may also qualify to have the custodial parent receive SSDI Dependency Benefits on behalf of their child. In this case, any dependency benefits received are included in that custodial parent's gross income for purposes of calculating child support. 

3. If the resulting child support order is less than the SSDI Dependency Benefits, then no further child support is ordered, and the custodial parent gets to keep the entire dependency benefit, regardless of whether or not it was through the custodial parent that the child became eligible for the dependency benefits.

4. If the resulting child support order is greater than the dependency benefit and the custodial parent is the one through whom the benefit was derived, then the non-custodial parent has to pay the entire child support figure.

5. If the resulting child support order is greater than the dependency benefit and the non-custodial parent is the one from whom the benefit was derived, then the non-custodial parent will pay the difference between the child support order and the dependency benefit.

Here are some examples, in order to make things a little less confusing:

Father receives SSDI. Due to his father's receipt of SSDI,  the child also qualifies to receive Dependency Benefits, which are granted to the custodial parent.  Mother receives regular income from a W-2 job. Mother is the custodial parent. 

• Mother's income includes the income she receives from her employment, as well as the SSDI Dependency Benefits received for their son.
• Father's income includes his SSDI benefits.
• The amount of dependency benefits is $80.00 per week.
• The resulting child support order is $75.00 per week from the Father to the Mother.
• Since the child support order is less than the amount of the benefits received by Mother as a result of Father's own receipt of SSDI benefits, Father does not have to pay any support.

If we use the same scenario as above but make the child support order $85.00 per week, then the Father would be responsible for paying the difference between the child support and the benefits, which would be $5.00 per week. Since the Father is the one from whom the dependency benefits are derived, he receives a dollar-to-dollar credit for them against his child support order.

If we use the first scenario but make it so that the Father is the custodial parent (and thus also receiving the dependency benefits), then the Mother would not pay the Father any child support because the support order is less than the dependency benefit.

If we use this same scenario but make the child support order $85.00 per week, then the Mother would owe the Father then entire $85.00. There would be no off-set for the dependency benefits because the benefits were not derived from the Mother, who is the payor.

For questions about the calculation of child support or any other domestic relations matters, please contact Attorney Leila J. Wons to schedule a consultation.

(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."