Has your spouse run away?

An entertainment company is creating a documentary TV series for a cable network about individuals with a significant other (a spouse OR a long-term boyfriend/ girlfriend) who has run away and is no longer in touch (ie: "disappeared" or "gone missing"). The company is looking for people who suffered a victimization of this nature. The show seems to be based on selecting individuals an then using experts from the TV series, including private investigators, to locate the missing spouse or partner. Anyone in this situation who is interested in having their story in the show can contact melissa.casting@gmail.com
Include: Full name, age, phone#, current city& state, spouse's name, number of years married, photo of the two of you together and brief description of when/ how they disappeared.

Of course, people can get divorced even if their spouse has disappeared. The law would not sentence someone to perpetual marriage merely because the spouse chose to disappear. Service of legal process can be accomplished by other methods such as by publication, relatives, or even social media. While a person can get divorced with a missing spouse it doesn't mean that they can recover assets, alimony, or child support. The missing person may have to be located before money can be collected. Experienced family law attorneys know how to locate missing people. While no attorney will have success in all missing person cases, they will be able to find some people. They will also know what legal action to take after a person is located.

Will the Child Tax Credit be a substitute for the Child Dependency Exemption?

Starting with tax year 2018 the dependency exemption does not exist anymore. Tax law, in an effort to simplify returns has eliminated the dependency deduction. Instead there is a Child Tax Credit which can be worth up to $2,000.00 per qualifying child.

The IRS has not published publication 504 (Divorced or Separated Individuals) for 2018. As a result, it is not clear if parties may agree which parent will receive the Child Tax Credit. While experts expect that the Child Tax Credit  may be allocated from one parent to the other by agreement, it is possible that only the custodial parent will be able to receive the credit.

The IRS may allow parties to specify which parent will be able to claim the credit. If that happens then existing judgments need to be examined to determine if the language about dependency exemptions may apply to tax credits. If not, then parties may need to file a modification to have the Child Tax Credit treated as the Child Dependency Exemption had been treated. A modification may be necessary for obtaining cooperation of the other parent or it may be a requirement under tax law for allocation of the credit.  A modification by agreement of both parties can qualify for a simplified procedure as a joint petition to modify.

Interpretation of your divorce judgment, modification of a prior judgment, and understanding the Child Tax Credit may require the assistance of a family law attorney.

Massachusetts Revises Child Support Guidelines

Child support in Massachusetts is controlled by Child Support Guidelines. The Guidelines are a formula approach to child support based on the parents' incomes and certain expenses (health, dental, vision, insurance, child care costs, and other child support obligations.) These guidelines were issued to comply with federal law that mandates the state review the guidelines every four years. In 2017 the state issued updated child support guidelines. Now, less than one year later, Massachusetts is revising the child support guidelines. The “new” guidelines are not a revision of the 2017 guidelines. The new set is merely a correction from mistakes made in the official child support guidelines worksheet.

From almost the instant the 2017 guidelines were announced it was discovered that the worksheet contained errors. This resulted in the state pulling the form from the state website for a period of time. Apparently, the first revisions did not correct all of the problems. The state has issued revisions and a new worksheet that takes effect on June 15, 2018.

In 2017, the guidelines had a different formula when one or more children are 18 or older than for children under 18. The new worksheet corrects problems that occurred when a one or more children were over 18 and other children were under 18 years old. Another correction relates to health care costs when the parents have equal parenting time.

What do these changes mean? In many cases, the calculator will result in the same amount for child support as the 2017 calculator. I expect that for people one or more children over 18 and other children under 18 that the amount of child support will increase. The only way to find out is to use the new calculator to calculate child support with your facts.

People should consult a family law attorney to understand their rights and obligations under the revisions to the Child Support guidelines.

Massachusetts Child Support Guidelines Address College Expenses (Finally).

Massachusetts child support law allows for payment of child support until age 23 if the child attends an undergraduate college. Judges can also order parents to pay for the cost of college. This has resulted in onerous orders where parents are ordered to pay significant college costs as the cost of private college has skyrocketed past $50,000.00 or $60,000.00 per year. This does not include the cost of weekly child support payments which usually continued until emancipation of the child.

In Massachusetts, court orders for child support are governed by child support guidelines which are reviewed an re-promulgated every four years. The latest version of the Child Support Guidelines took effect on September 15, 2017 and for the first time address college expenses and child support during college.

In the movie Pirates of the Carribean there exists a “Pirate Code.” The code is described as “more what you'd call 'guidelines' than actual rules.” In contrast, the Massachusetts Child Support Guidelines are more like actual rules than guidelines. It seems rare that judges enter an order that does not strictly follow the guidelines. As a result, the new Guidelines which finally address college should give relief to parents who see the skyrocketing cost of college as a path to financial ruin. The new Child Support Guidelines address both weekly child support and college expenses.

Weekly child support.

According to the Guidelines, child support should continue to be paid while a child is in college and living primarily with a parent. However, child support is reduced for a child in college by twenty percent (20%). The child support guidelines have tables to calculate the amount of child support while incorporating this reduction. The tables address various combinations of children in and at home so a family that has three children can calculate the total amount of weekly child support whether is one, two, or three children in college and younger children still fully dependent on the parents. The result is that the child support payments are decreased even if younger children live with the recipient parent.

College expenses

When making an order for payment of post-high school education costs, the court has to consider a number of factors including the cost of the post-secondary education, the child’s aptitudes, the child’s living situation, the available resources of the parents and child, and the availability of financial aid. This means that parents can argue that the educational program is not appropriate for the child as well as arguing that the parents lack resources to pay for college. Litigation may focus on high school performance and attendance and grades in the first year or two of college as a measure of a child's aptitude.

The guidelines state that “[n]o parent shall be ordered to pay an amount in excess of fifty percent of the undergraduate, in-state resident costs of the University of Massachusetts-Amherst, unless the Court enters written findings that a parent has the ability to pay a higher amount.” A judge can still order a parent to pay 100% of college costs at a private college but must make specific findings concerning the parent's ability to pay this amount. Since this is a new concept in Massachusetts Courts there are no cases that help parents understand when they have the ability to pay these increased costs. At this time, it is likely that Judges will focus on parent's net income and net assets rather than on expenses and liabilities. Parties should not be able to manipulate their expenses and liabilities to avoid paying for their children's education. It is easier and simpler for Judge's to assume that parties may be manipulating expenses and liabilities rather than try to understand the necessity of each expense and the history for each liability.

The Guidelines define college costs to limit litigation. College costs are defined as mandatory fees, tuition, and room and board for the University of Massachusetts-Amherst, as set out in the “Published Annual College Costs Before Financial Aid” in the College Board’s Annual Survey of Colleges. The University of Massachusetts-Amherst was designated as the benchmark for maximum orders because it was the flagship, and most expensive, Massachusetts state college when these guidelines became effective. Other expenses such as transportation, books, computers, cell phones, clothes, linens, SAT exams, application fees etc. are not addressed by the child support guidelines. It is logical to assume that these should be paid by the parent with whom the child primarily resides.

While the Child Support Guidelines use UMass Amherst as the benchmark for costs, the cost of the school has to be introduced into evidence at trial. The language of the Child Support Guidelines indicate that Judges should accept a printout of the “Published Annual College Costs Before Financial Aid” in the College Board’s Annual Survey of Colleges as evidence or take judicial notice of the information on the web page. A party intending to introduce this as evidence should provide the opposing side with a copy of the information well in advance of the court hearing as the Judge may refuse to consider the information in the absence of notice to the other side.

College expenses and child support for children attending college can be complicated matters. The new child support guidelines finally address these matters but they still allow Judges to deviate from the Guidelines by making written findings. An experienced divorce lawyer should be able to give individuals guidance on how a Judge is likely to apply the guidelines.

Can an out of state divorce decree be modified by a Massachusetts Court?

In a recent case, Cohen v. Cohen, the Massachusetts Supreme Judicial Court ruled that Massachusetts had no jurisdiction to modify a California divorce decree to order college expenses and child support. This case is easily misunderstood as the decision is limited to a particular type of case.

In the Cohen case, the parties were divorced in California and the Wife and child continued to live in California. The husband moved to Massachusetts. This meant that the Wife had to use the Massachusetts Courts to enforce the California divorce judgment. She could have hired a Massachusetts lawyer to collect her child support or she could have used the California child support agency to collect the money. She selected the California child support agency.

Every state has an agency which collects child support for residents of the state. In the Cohen case, the California agency initiated an interstate child support collection action under the Uniform Interstate Family Support Act (UIFSA.) Both Massachusetts and California (and probably all other states) have enacted UIFSA into their state law. While it was California in this case it could have been any state. Under UIFSA, California asked Massachusetts to file a case to enforce the California divorce decree and California law. An action was filed in Massachusetts by the Department of Revenue (DOR.) to enforce the judgment. While the Massachusetts Court had all of the powers under Massachusetts law to enforce the judgment, it had no power to modify the judgment. In the Cohen case, the divorce decree made no provisions for college education or medical bills of the child. The Massachusetts Court was unable to make any orders relating to payment of college education or medical bills.

This case doesn't mean that the Wife in the Cohen case could never ask a Massachusetts Court to modify the California Judgment. It only means that she couldn't modify under UIFSA. She could have hired a Massachusetts lawyer to enforce the California decree and modify the judgment. Had she proceeded in this manner, she would have enabled the Massachusetts Court to use all of its powers and authority including the power to modify the California judgment. If the Wife had filed an action in Massachusetts it would have been very expensive. She would have had to pay for a Massachusetts lawyer instead of having DOR represent her for free. She would have had to travel to Massachusetts for the trial and possibly for a pre-trial conference instead of staying in California. Of course, there is no guarantee that a Massachusetts court would apply Massachusetts law and modify the judgment. Instead, the court could have ruled that the Wife must file a modification in California or that Massachusetts would apply California law. As a general rule, using UIFSA for interstate child support enforcement is a better choice.

Interstate child support enforcement is a complicated area of law. If you have a case that crosses state lines you should consult an experienced family law attorney.

Child support agreements need court approval

Previously, I wrote about the dangers of parents making an agreement for child support and not

seeking approval from a court. A recent case, Zizza v. Zizza, from the Massachusetts Appellate Division (Oct. 27, 2014) is an example of the problems created when parents make an agreement without judicial approval.

In the Zizza case, the parties, after a foreign divorce, entered into a private agreement regarding property division, child custody, visitation, and child support. The agreement also had a clause that stated that the agreement could not be be modified by any court. This agreement eventually resulted in litigation in Massachusetts District Court with the court ordering a modification of the child support obligation. On appeal, the Appellate Division upheld the modification of child support. The court added a comment which explained that the Massachusetts Legislature has declared that it is against public policy to make an agreement that prevents the courts from changing child support obligations.

If you are about to make an agreement for child support you should consult a lawyer who is experienced in family law to make sure you don't fall into a child support trap.

Can a physically disabled adult child receive child support in Massachusetts?

Recently, the Massachusetts Appeals Court ruled in the case of Vaida v. Vaida, Mass. App. Ct. No. 13–P–1827 (November 6, 2014) that a father did not have to pay child support for his adult physically disabled child. At first glance, this case seems to establish that a physically disabled child can't collect child support once the child reaches age 23. A closer examination convinces me that this case should not be considered precedent.

In Vaida, the child was a quadriplegic as a result of reckless conduct of the father. The father had been sued and settled the case for 3.5 million dollars. A settlement agreement and releases were executed. The prior settlement is a barrier to collecting child support from the father. Will the result be the same if there is no prior settlement?

Massachusetts allows child support to be collected for an adult child that is under a mental disability and has a court appointed guardian. Feinberg v. Diamant, 378 Mass. 131 (1979) and Eccleston v. Bankosky, 438 Mass. 428 (2003). With both mentally disabled children and physically disabled children the children need to be supported by others. In both cases, the children are unable to earn sufficient money to support themselves. The children must be supported by either the parents or government. If the parents have the ability to support the adult children, then they should do so instead of having taxpayers paying for the care of the children. I see no logical reason for parents of mentally disabled children to pay child support but not parents of physically disabled children.

There is a legal maxim that states “bad facts make bad law.” The Vaida case contains bad facts of the prior settlement. Hopefully, the next time that a case with this issue is litigated the courts will give the question a fresh look and not rely on the Vaida case. If you have a case involving an adult disabled child you should consult an experienced family law attorney.

Don't fall for this child support trap!

It is not unusual for custody arrangements to need adjustments to change as the children get older. Visitation schedules often change. Children's friends and activities need to be taken into account. Sometimes children move from one parent's home to the other and primary custody changes. The courts encourage cooperation between parents and generally support all custody and visitation changes that occur through agreements. Even if these changes occur without approval from a Probate Court Judge they seldom are the cause for a contempt action in court. It is almost unheard of a court actually finding a parent in contempt for not returning a child to a parent where there is an agreement for a change of schedule.

Changes in child custody can effect the amount of child support paid. The current Massachusetts Child Support Guidelines use as a factor the amount of time spent with each parent. As a result, when child custody changes, the amount of child support changes as well. Parents who can cooperate to change custody and visitation for the benefit of the child may also cooperate to adjust child support. Just as parents change custody without judicial approval, they may also change child support by agreement and without judicial approval. This results in a trap for the parent who reduces or stops paying child support.

In the case of Taylor v. Taylor, Mass.App.Ct. 13-P-997 (5/13/2014) the daughter moved from father's home to mother's. The parties agreed that the mother would stop paying child support due to this change in custody. The father even signed a written waiver of child support. Three years later the father filed a contempt for unpaid child support. The court found that despite the written waiver by the father, the mother still violated a court order and was in contempt of that court order. As a result, she had to pay the three years of child support with interest and penalties even though the daughter lived with her and she supported the daughter. The trap is that despite an agreement of the parties, the mother paid to support he daughter and then paid years of child support to the father.

While Massachusetts encourages agreements between the parties, it is necessary to seek approval of financial agreements by a judge. There is a simplified procedure for approval of such matters. Frequently, the court approves these agreements without the necessity of a court appearance.

If parties are contemplating an agreement to modify a child support order, they should consult an experienced family law attorney to avoid falling into the child support trap.

Should a Stay-At-Home parent have a post-nuptial agreement?

A person who chooses to stay at home to raise children usually makes this decision after consultation with their spouse. The decision is made in furtherance of the partnership called a marriage. The stay-at-home parent assumes that the marriage will last until one of the parties dies and that they won't suffer financially as a result of leaving the work force. Unfortunately, many marriages are terminated by divorce and the stay-at-home parent finds themselves unable to maintain their standard of living after divorce.

When a stay-at-home parent returns to the work force after years of child raising they frequently find that they are considered unqualified for their former occupation. They may need to return to school to refresh their skills. When they do find work, they frequently start with entry positions instead of a job comparable to their peers who never left their occupations.

Prior to 2011, divorce judges frequently compensated such stay-at-home parents with alimony awards designed to maintain their standard of living. However, in 2012 Massachusetts enacted an alimony reform law that can result in loss of security for the stay-at-home parent. The alimony reform law contains, among other provisions,1) a limitation preventing the award of alimony if child support is paid and the combined income of the parties is less than $250,000.00; 2) time limits for the period of alimony when alimony is granted; and 3) a termination of alimony at retirement age. Given the changes due to the alimony reform law, it is wise to plan for the potential of a divorce.

An agreement between the spouses can provide security for the stay-at-home spouse despite the changes caused by the alimony reform law. If the parties create such an agreement before marriage, it is called a pre-nuptial agreement. Many couples don't anticipate such situation before marriage. There is an alternative: a post-nuptial agreement. A post-nuptial agreement is an agreement between the spouses that is like a pre-nuptial except that it is executed after marriage. Massachusetts has joined the growing number of states that allow post-nuptial agreements in some circumstances. An agreement between the spouses which results in one spouse leaving the work force to raise children should be valid as a post-nuptial agreement in Massachusetts.

A person who is contemplating leaving work to raise children should consult an experienced lawyer about a pre-nuptial or post-nuptial agreement to compensate them for the anticipation of not working as a result of their decision.

Source: “Dostay-at-home moms need a 'postnup'?” by Jeff Landers published at Today.com

My Ex and I agree to change the terms of our divorce. Do we have to go to Court?

Once a Massachusetts Court has made an order or judgment in a divorce or paternity case it is enforceable by all of the powers of the Court and State for enforcement of judgments. This means that any change must be approved by the Court. Of course minor changes in the parenting plan don't need court approval. (If the parties swap weekends, as an example, no court involvement is required.) However significant changes, such as anything to with money or finances will need court approval.

There is a trap if the parties don't change the court order.  As an example, assume that the divorce required the Husband to pay $300.00 per week. The ex-spouses agree that the child should spend more time with Father and enter into an agreement for the child to live half of the time with each parent. Because the child is with each parent for an equal amount of time, the parents also agree that the Ex-Husband should stop all child support payments. The Ex-Husband, relying on this agreement, stops the payments. Five years later, the Ex-Wife files a contempt in Probate Court for the five years of unpaid child support. Since the Court never approved the agreement, the original order is still enforceable. The Ex-Husband owes five years worth of support or $78,000.00 plus interest and possibly attorney fees.

This trap can be avoided by the parties seeking Court approval of their agreement. Parties tend to avoid court because they think it will cost a lot of money. However, the Probate and Family Court has a simplified proceedure to approve agreements of this nature and have forms available on their website which the parties can fill out and submit. This procedure is explained in Rule 412 Of The Supplemental Rules Of The Probate And Family Court.
Every person in Massachusetts who agrees to change the financial terms of child support or spousal support should not rely on the agreement. Instead, they should use the simplified proceedure and have a judge approve the changes. Then, they can safely rely on the order of the court. An experienced Massachusetts Family Law Attorney can help parties present their agreement to the Court for approval.

Should Massachusetts Family Court Conduct Virtual Hearings?

A man in Georgia received a summons to appear in Massachusetts for a child support hearing. He didn't have the money to travel to Massachusetts so the Court held a hearing without him. Since he didn't appear, the Court entered an order greater than his take home pay. He couldn't pay the order in full and, since the money is taken out of his paycheck, he lacks the ability to pay his bills. All he had to do was to show up in Massachusetts, show a pay stub, and fill out a financial statement. If he had done these things, the court would have entered a reasonable order for child support.


A man in Nevada received a summons on a contempt action claiming that he owes $1,500.00 for unpaid medical bills. The problem is that the medical bills were never sent to him. He never had the ability to pay the bills. Since he got sued, he now has the choice of traveling to Massachusetts to defend the action, hiring a lawyer, or paying the money even if he doesn't owe it. The least expensive choice is to pay the money.


These stories are calls that I received from potential out of state clients who were sued in Massachusetts. In both cases, and in many others, litigation in Massachusetts Probate and Family Court about child support and other financial issues results in a miscarriage of justice. Even if the out of state defendant fights the action, they lose because the cost of travel and fighting is so high. Usually, the out of state defendant is facing the potential of multiple trips to fight the litigation. What is needed is the ability to have out of state Defendants present their cases without traveling to Massachusetts and still giving both sides a fair hearing. The internet allows the Court to change the rules to provide a low cost, fair hearing.


Under current law, Family Court hearings in Massachusetts require that all participants attend every court hearing. Failure to do so can result in expensive financial orders or loss of rights. This requirement is based on the concept that the Judge's time is very valuable and that the parties must present their arguments to the Judge in person. The system was created before the invention of the internet which allows easy, low cost video teleconferencing, and before the invention of the telephone speaker phone. The Massachusetts court system is also based on a concept that the courts are distributed throughout the Commonwealth so that it is convenient for parties to attend court. What if it is not convenient? What if someone lives in another state or another country? Do they have to attend in person? Under the current system the answer is that they must attend in person.


It is permissible in some circumstances for litigants to not appear in person. This is only allowed if a lawyer or a party brings a motion in advance for a hearing to be held without a party attending in person. This motion may present that the lawyer will appear without the client or it may request that a party participate by video conference or by telephone conference. What if a person lives out of state and can't afford to hire a lawyer and can't afford to travel to Massachusetts? There is no procedure for a person to participate in this circumstance.


I suggest that the Courts change the rules to allow virtual hearings to accommodate out of state parties. With today's technology, parties can fax documents to the court and appear virtually through the internet. We no longer need expensive equipment. Smart phones, tablet and laptop computers all have cameras that allow teleconferencing. Software to conduct video conferencing such as Skype and Facetime are free. With a minimal amount of effort, parties can appear long distance without spending a fortune to travel to Massachusetts. In fact, Probate Courts have held virtual hearings for years when a party is incarcerated in a Massachusetts prison.


What I think is necessary is a court rule that allows virtual appearances. It can be limited to specific types of hearings such as temporary orders. The rule should allow a party to mail or fax a request to attend the hearing by video. The rule can require that financial statements and related documents be faxed or mailed to the court with copies faxed or mailed to the other side in advance. The court can schedule a virtual hearing at a set time. This would require that parties can mail or fax the request and that the Clerk's office would process the request. It would also require a change in the wording of the summons to notify parties of the right to seek a virtual hearing.


Until such time as the courts change the way they treat out of state parties, any out of state person who is sued in Massachusetts Probate and Family Court must consult an experienced Massachusettsfamily law attorney for help.

Revised Massachusetts Child Support Guidelines take effect on August 1, 2013

Massachusetts has revised the ChildSupport Guidelines with the new guidelines scheduled to take effect on August 1, 2013. The guidelines adjust the formula for child support and fills in some gaps.  A summary of some of the changes follows:

As a general matter, the new Guidelines lower the amount of money paid in support for one child and increase the amount for more than one child. It is impossible to state that for all people the result will be the same because the formula is based on many factors including the income of both parents. However, it appears that some payers will pay 10% to 15% less if there is only one child. As the number of children increases, the amount to be paid will increase as the Guidelines increase the amount paid with more children.

The Guidelines eliminate from the definition of income now excludes certain government benefit programs such as Social Security Income and SNAP (welfare) benefits.

The Guidelines give Judges discretion to consider income from secondary jobs and overtime. This will require Judges to either incorporate the income from these sources in the Guideline calculations or explain why the money is excluded. I expect that in most cases, the income will be included.

The Guidelines make it clear that child support calculations should not stop if the combined income reaches $250,000.00. When the income exceeds this amount, the Guidelines no longer provide a formula but the Judge should make an order for additional support to be paid or explain why additional support should not be paid.

The Guidelines are based on the assumption that custody is shared by the parents on a 2/3^rd – 1/3^rd basis. This is the situation when the non-primary parent has the child every other weekend and one evening a week. If the non-primary parent is with the child less than 1/3^rd, the parent should pay more. If the parent is with the child more than 1/3^rd, the parent should pay less. The former Guidelines had a formula for a 50 – 50 split of custody. This formula remains. What is new is that there is now a formula for calculating child support when the non-primary parent has the child between 1/3^rd and ½ of the time. What is missing from the Guidelines is rules on how to calculate time with the child. Do you count nights? Do you count hours? How do you calculate time when the child is in school? Over time the Courts will adjust to these issues.

The Guidelines have language to give additional guidance for Judges when the child is over 18 years old. The Guidelines do not give a formula for Judges in this instance.

Probate Court has a web site which provides the new Guidelines and forms. http://www.mass.gov/courts/childsupport/index.html. The new forms included a revised worksheet to calculate child support and a form for Judges to use when they decide to enter an order that is not in strict compliance with the Guidelines.

Parents may find the new guidelines confusing and difficult to understand. An experienced divorce lawyer can help people understand their rights under the new guidelines.

What will the Court do in a divorce when I prove that my spouse cheated?

Discovering that your spouse has been unfaithful can be an emotional disaster. To many people, this is a wrong that can never be corrected. It can destroy a marriage. People expect that infidelity will be punished by a Judge in a divorce and the innocent spouse will be rewarded by a favorable property division or alimony as a result. Some people think that a person who commits adultery should not have custody of children. While the actions of the courts vary depending on the specific facts of a case, usually, a Massachusetts Court will do very little when adultery is proved.

Grounds for Divorce

Massachusetts is a no-fault divorce state. There is no advantage to filing a fault grounds divorce if the other party will appear in the divorce action. While Massachusetts allows a divorce on the grounds of adultery, Judges will encourage parties to change the divorce to no-fault. If a divorce is filed on the grounds of adultery, a motion must be filed to name the third party who participated in the infidelity. Judges will deny this motion as soon as it is filed.

Alimony and Property Division

Alimony and property division in a divorce require a Judge to consider many factors. There is no factor specifically addressing marital fidelity. One of the factors is "conduct of the parties during the marriage." Certainly cheating should be considered wrongful conduct. However, it is hard to imagine a marriage where the only conduct by one party was bad conduct. Usually every person has good conduct and bad conduct during a relationship. The Judge must consider all conduct, good and bad. As a result, it is rare that a person has behaved so badly during a marriage that it has a significant affect on the outcome. Massachusetts divides marital property under a concept of equitable division. I have never heard a Judge describe any part of equitable division as including the concept of punishing a party for bad behavior.

Sometimes when Infidelity occurs one spouse has established an on-going relationship with a third party. Sexual infidelity may be a part of this relationship. Another part of the relationship may be using marital resources to benefit the third party. Expensive gifts or trips can constitute a diversion of marital assets. If spending of substantial money to conduct the affair or benefit the paramour occurred, then a Judge may be expected to take the expenditure into account when dividing assets. It is not the sexual acts that impact the property division, it is the spending of money.

Child Custody and Child Support

The standard for deciding custody is “the best interests of the child.” If the affair was unknown by the child and had no effect on the child, then the Judge should not consider the affair when deciding child custody or visitation. Although it is predictable that the paramour may be exposed to the child in the future, unless there is evidence of inappropriate sexual conduct occurring in the presence of the child, the Judge should not let an affair control a custody decision.

Child support is decided by application of the child support guidelines. Once child custody is determined, child support will follow. An affair is not related to the child support guidelines.


An affair may violate societal and religious morals. However, in most cases, it has almost no effect on an divorce. Of course, each case is fact specific and if your spouse has committed adultery you should consult an experienced family law attorney to discuss what effect, if any, this can have on a divorce.

Does Massachusetts have a new standard for modification of child support?

A recent case in Massachusetts, Morales v. Morales, decided March 12, 2013 SJC # 11104 is described as changing the standard for modification of child support. While this is clearly an important case, in my opinion, it does not change the law.

The traditional law of modification for child support is that a modification can be granted when there exists a material and substantial change of circumstances from the prior court order. There have been many court decisions interpreting this standard. In 1998, Massachusetts changed G.L. c. 208, § 28

which provides that a child support order shall be modified "if there is an inconsistency between the amount of the existing order and the amount that would result from application of the child support guidelines." In the Morales case, the Court describes G.L. c. 208, § 28 as establishing a different standard for a modification, the inconsistency standard. I have always interpreted this law as stating that an inconsistency from the existing guidelines constituted a material change of circumstances. The result is the same, child support can and should be modified any time there is a variance from the order and the guidelines.

In the Morales case, the Court also addressed another aspect of the child support guidelines: overtime. In this case, the trial judge announced that she does not include overtime in the child support calculations. The child support guidelines give the judge ability to disregard overtime after considering numerous factors. However, this trial Judge never considered overtime. On appeal, the court found that the Judge cannot approach the child support guidelines with an inflexible rule on consideration of overtime. The Judge must approach as a neutral and give due consideration to the factors as stated in the child support guidelines.

My interpretation of this case is as follows:

1. The child support guidelines are not guidelines. They are a set of rules that must be followed.
2. Any time that there is a variance from current calculations under the child support guidelines, there should be a modification. Hopefully, parents will exchange financial information on a regular basis and make the adjustments without resorting to litigation.
3. People who pay child support (payors) should not make deals to pay different sums than dictated by the child support guidelines. As an example, assume the parties agree to pay reduced child support in exchange for a lump sum payment. This could be approved at the time of a divorce. However, what happens one year later when the recipient of the support seeks an increase to comply with the current child support guidelines? It appears that the payor could end up paying the current child support guidelines even though they made a deal to pay less. The lesson is that it is very risky to stray from the guidelines.
4. It is reversable error for a Judge to state that they always approach the child support guidelines in a particular way. Judges may say this to encourage settlement. It appears that Judges should avoid making statements of this nature. In all probability, Judges will continue to have inflexible approaches to the application of the guidelines. However, they will probably stop talking about their approaches and just make rulings after hearing the evidence.

Despite this opinion which clarifies the interpretation of the child support guidelines, people will continue to litigate child support. Some people will try to hide their income. Some people will not disclose their income in advance of litigation. Some people will refuse to consider sources of income other than from their primary work. In all of these cases, litigation is likely to occur. It would be best if people consulted family law attorneys before making mistakes of this nature.

A family law case is now before the United States Supreme Court

It is rare when the United States Supreme Court hears a child support case. However, there is a case before the Supreme Court now involving such an issue. In the case of Turner v. Price, Docket No. 10-10, Turner was incarcerated for one year for non-payment of child support. The South Carolina Court that heard the trial did not make a finding that Turner was indigent and did not appoint an attorney to represent him before sentencing him to jail. If Turner was sentenced in a criminal case, he would have had a court appointed attorney. However, in a civil contempt case, under South Carolina law, he didn’t qualify for a court appointed lawyer.
It doesn’t make any difference to a person if they are jailed in a civil case or a criminal case. Jail is jail either way. Violation of a court order may result in a case for civil or criminal contempt. The court has the power to jail people for violation of court orders. Some people violate court orders and fail to pay child support because they can’t afford to pay the money. Others violate court orders and fail to pay child support because they choose to not pay the money. Clearly some people need the threat of a jail sentence or even time in jail as an incentive to pay child support. Frequently, the determination of imposing jail time is not known until the end of the hearing.
The case of Turner v. Price raises the issue of the constitutionality of imposing a jail sentence without the benefit of an attorney to defend the person before jail is imposed. Just as in criminal cases, the result of the civil contempt may be different if a lawyer is involved. This is an important issue as nobody should go to jail without due process and an opportunity to present a defense. These are not rights guaranteed in criminal cases. These are rights guaranteed to Americans under the United States Constitution. On the other hand, the state must pay for court appointed attorneys. If the defendant can’t afford an attorney and the state must provide one then the state must also pay for the attorney. As the states are cutting budgets and court systems are experiencing large cuts in their budgets, it is difficult to argue that they should allocate money to pay attorneys to represent parents who won’t pay child support. I suspect that any ruling on this case will extend to all civil contempts including contempts for non-payment of alimony and any other violation of a court order.
This case bears watching but we may be disappointed in the result. The court ordered the parties to brief the issue of incarceration for civil contempt without a lawyer and another issue. They also ordered the parties to brief the issue of whether the Supreme Court has jurisdiction to hear this case. If the court finds no jurisdiction, they won’t may any orders on the other issue. The briefs in this case are due to be filed in January and February, 2011.

Single parent adoption

A recent case in Massachusetts addressed an issue that is frequently raised by parents who don’t want to pay child support and gave the same answer as always. In the case of ADOPTION OF MARIANO, 933 N.E.2d 677 (Mass.App.Ct. 2010) the father of a child wanted to relinquish parental rights so that he wouldn’t pay child support. Whenever this issue was raised in the past the court always refused to terminate parental rights. That is because the focus is the child and not the parent. Every child deserves two parents and every child deserves child support. As a result, the courts have always refused to terminate parental rights unless another adult sought to adopt the child.
In the case of ADOPTION OF MARIANO, 933 N.E.2d 677 (Mass.App.Ct. 2010) the mother sought a single parent adoption by which the father would relinquish all rights and duties towards the child and the mother would become a single parent. This is just another attempt to terminate parental rights of the father but with a twist. In this case, the court reached the same result and denied the single parent adoption. Parents may not bargain away their children’s rights to support from either parent.