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.

Can I obtain an Annulment?

Annulment, like divorce is a judicial declaration that a person is no longer married. The difference is that in a divorce, the court terminates the marriage, An annulment is a declaration that the marriage never existed. An annulment that is granted by a court is not the same thing as a religious annulment. Some religions will grant a religious annulment after a court has granted an annulment or divorce.

A marriage is an agreement between two parties and sanctioned by the government in the form of official recognition of the agreement. The marriage contract must comply with traditional contract principals and the official requirements of the state. When a couple go through a marriage ceremony but violate the law of contracts or fail to meet the requirements imposed by the state then the marriage may not have been created. This means that the validity of the marriage and the ability to obtain an annulment are based on facts that occur at the time of the wedding ceremony and not anything that happens after the ceremony. As a result, it is not relevant that the parties never consummated the marriage or were abusive or unfaithful.

Grounds for an annulment are based on contract principals or governmental interests. An annulment can be granted for failure to enter a contract. In other words, a person did not actually agree to the marriage. Examples of these contract reasons are fraud, undue influence, duress, or unable to have form consent such due to incompetency or underage. Governmental interests prevent a marriage when there is an impediment or a close family relationship. An impediment means that a person is married to someone else. Family relationships are barriers to marriage because our society does not want siblings to marry, parents and children to marry, or other close family members to marry.

Even though annulment is a declaration that a couple were never married, once a couple has gone through a wedding ceremony, neither party can get married to someone else without a judicial annulment. Annulments are rare in Massachusetts and anyone who is contemplating an annulment should consult an experienced family law attorney. 

Problems with trial separations

     Many couples who experience problems in their relationships choose a trial separation in the hope of having some time off and then improving their marriage. It is my experience, as a divorce lawyer, that trial separations lead to divorce. When it comes to separations, absence does not make the heart grow fonder. My experience is that absence makes the heart grow suspicious and jealous.

     The biggest problem in separations seems to be the one year lease. Most couples who separate don't have the luxury of two homes. Typically, one person moves out of the home and rents an apartment. For most people, this means that they sign a one year lease and obligate themselves to pay rent for a year. As a result, the person who moves out thinks that the trial separation will last the full year. During this year, one person remains in the home with the children and the other enjoys the social freedom of independent living. The person in the home lacks the social opportunities available to the other. The natural inclination is to consider the apartment rented for a year as a year long opportunity to enjoy sex with other partners. It doesn't matter if the person commits adultery, the spouse remaining in the home will suspect that adultery occurs on a regular basis. This attitude won't help the couple reconcile.

     When a couple separates, they have to maintain two households instead of one. This will cost more money and put a strain on the finances of the couple. In addition, the couple will talk less about expenditures and there is an opportunity for either or both to spend money in ways that the other spouse would not approve. This lack of financial control can drastically increase the combined debt of the couple which must be addressed in the event of a divorce. Just as assets are divided at the time of divorce, debts must be divided as well. In addition, maintaining two households and increasing the expenses can result in a lower standard of living. The standard of living is one factor in both property division and alimony if a divorce occurs.

     A long term separation allows the other spouse the opportunity to hide assets. The longer the period of separation, the more money can disappear. While one party may be trying to reconcile, the other may be trying to improve their position for the future divorce.

    A separation is the equivalent of treading water. If the parties are trying to reconcile, the separate residence makes it difficult. Yet, as long as they are trying to reconcile, they won't be looking for new relationships. Their life is put on hold.

     If a couple is thinking about separating, they should consider other methods of working on their relationship. They should consider therapy. They should also remember that without intimacy, almost every relationship will fall apart. Many couples consult with divorce lawyers to understand the reality of the cost of divorce and life after divorce. For most couples, separation leads to divorce and not improvement in their relationship.

How to Gracefully Exit a Relationship

Because I am a divorce lawyer, I was asked to read and review a book entitled “How to Gracefully Exit a Relationship” by Frank Love. I reviewed the web site, http://franklove.net/, and agreed to read the book. To my surprise, I found the book gives great advise to people who are terminating a relationship or getting divorced and also to people starting relationships. I recommend this book to everybody who is in a relationship, wants a relationship, or wants to terminate a relationship.


Frank writes in easy to read language about his solution to relationship problems. His solution is communication. I assume that everybody understands that communication can improve relationships, but Frank gives specific advice and examples. He acknowledges that a break-up can occur in any relationship. So his advice is to discuss this possibility early in the relationship. By discussing the potential in advance, if a break-up occurs, the conflict should be reduced.


Frank also suggests that people discuss issues that are important to the parties and their expectations of the relationship. Do the parties expect that their partner will be monogamous? Are there expectations that if not met will mean the end of the relationship?


Frank mentions that he has suffered through his share of break-ups and has learned from the experience. He has learned that a broken relationship doesn't mean failure. It can mean that the parties have changed and are ready to move to the next phase of life. Once the blame disappears, the parties can discuss the break-up calmly and rationally. As he describes it, a break-up is not a rejection, it is a conclusion.


I recommend this book for everybody who is in a relationship or is leaving a relationship. However, I think the people who can benefit the most from this book are people who are just starting a relationship. This book can help people have better relationships and maybe make your current relationship last a lifetime.

Exculpatory clauses in purchase and sale agreements.

The purchase of residential real estate may be the largest purchase a person makes in their life. The magnitude of this purchase and the potential for financial loss should cause a purchaser to proceed with caution. A recent case that discusses exculpatory clauses in purchase and sale agreements reinforces the need to get expert help from an attorney when purchasing real estate.

In Massachusetts, there are a number of standard form purchase and sale agreements. The most widely used form is the Greater Boston Real Estate Board form. This form has a clause that reads as follows:

"The BUYER acknowledges that the BUYER has not been influenced to enter into this transaction nor has he relied upon any warranties or representations not set forth or incorporated in this agreement or previously made in writing, except for the following additional warranties and representations, if any, made by either the SELLER or the Broker(s): NONE

This clause is called an exculpatory clause because it excuses the Broker from liability. Many Buyers think the Broker is working to protect the Buyer when in reality, the Broker is working to protect themselves.

In the recent case of DeWolfe, v. Hingham Centre, LTD, 464 Mass. 795 (2013), the Court addressed a case involving interpretation of this clause. In the DeWolfe case, the Broker had made a written representation concerning the zoning of the property in question. This representation turned out to be incorrect. The purchase and sale agreement had the exculpatory clause with the word “none” inserted. The Broker claimed that as a result of this clause, the Broker had no liability for the negligent misrepresentation. The Court ruled that because the representation was in writing, the exculpatory clause did not protect the Broker. As a result, the Buyer was able to successfully sue the Broker for damages as a result of the Broker's mistake.

The clear message from this case is that the exculpatory clause is valid and will protect the Broker from a lawsuit from the Buyer for oral or verbal misrepresentations. When signing a purchase and sale agreement, it is important that the Buyer insert any and all representations or statements made by the Broker if the content of the statement is important to the Buyer. I ask every Buyer if the Broker made any statements that if they turn out to be false will cause the Buyer to not purchase the property. The best practice is that any oral or written statements that are important to the Buyer should be inserted into the purchase and sale agreement.

Another lesson from this case is that Brokers can change the language of the exculpatory clause to exclude liability for written statements or representations by the Broker. Buyers should be vigilant to protect against the Broker eliminating liability for representations.

An experienced real estate attorney should modify this clause to continue liability if the Broker makes a misstatement about an important fact.

Parent coordinators help parents avoid court.

When parents separate or get divorced, they frequently have difficulty cooperating with the other parent. The hostility between the parents can make every decision concerning children a battle. Frequently, this inability to cooperate results in litigation as the only resolution is a decision by a judge. A low cost and quicker alternative to litigation is a parent coordinator.

A parent coordinator is a third party who makes decisions concerning children when the parents can't agree. It is a form of alternative dispute resolution but it is not created by state law. In Massachusetts, it is created by an agreement of the parties. In a written agreement, typically a divorce separation agreement, the parties spell out the powers of the PC and the rules by which the PC will function. The agreement is approved by a Judge and becomes an order of the Court. The agreement allows for either party to appeal a decision from the PC to a Judge. Usually, the PC has an initial interview with the parents and then resolves issues utilizing telephone calls and emails. While the PC charges by the hour, they usually charge less than an hour for most decisions.

Parent coordinators can help the parents make better decisions, save money, and eliminate stress. Consult an experienced family law attorney to incorporate PC provisions in your parenting agreement.

Divorce can be better if you don't do-it-yourself (DIY).

I previously wrote about the dangers of do-it-yourself divorce. This article is a little different in which I am writing about why people getting divorced should consider alternatives to DIY and the advantages to the alternatives.

Certainly there are some people that do very well with do-it-yourself divorce. In particular, people with short term marriages, no assets, no debts, and no children can manage a divorce themselves. In this situation, if both parties agree that they should get divorced, pay nothing to each other, that all property and debts have been divided and they never want to have anything to do with each other, they they should be able to do the divorce paperwork themselves. Also, people who can't afford attorneys may have no choice about the matter. They may not qualify for legal services representation and may be forced to figure out how to get divorced without lawyers. However, even people who ultimately do their divorces themselves have options and should take advantage of services that lawyers offer.

Many family law attorneys offer free initial consultations. In these consultations, lawyers may discuss pitfalls in proceeding without a lawyer and may also give guidance.

Massachusetts, and other states, now allow attorneys to provide limited representation. This means that people getting divorced can pay a lawyer to do a limited task. Just paying a lawyer to review an agreement may save a party years of overpayments or underpayments. This is a compromise between paying a lawyer to handle everything and not consulting a lawyer at all.

The more contentious the divorce, the greater the need for hiring a lawyer. Abraham Lincoln was correct when he uttered his famous quote. People negotiate differently when a third party does the negotiation. A lawyer should negotiate out of logic and not out of emotion. All too frequently, people who handle their own negotiations focus primarily or even exclusively on the emotions. It is not unusual for people to try to negotiate to get revenge on their spouse. Lawyers should avoid seeking revenge. Instead, lawyers should focus on the rights and obligations as established by the law. Merely having a third party negotiate can simplify and shorten the negotiations. Some people abandon their emotional need for revenge when they are not negotiating directly with their spouse. 

Lawyers guide clients through the family court system. Many people waste time and resources because they don't understand the proper procedures and concepts. It is not unusual for Judges to continue court hearings because do-it-yourself litigants are not prepared for the hearings. I have had many cases in which I have explained to opposing pro-se litigants the procedure or law and the case settled immediately.

Family lawyers can refer people to other professionals who can assist in the divorce process. Appraisers, therapists, mediators, insurance agents, financial advisors, accountants may all be necessary to move the parties through the divorce process. Additional documents may be needed as part of the divorce process. Documents such as wills, powers of attorney, deeds, documents to transfer assets may all be needed. It is not enough to require insurance coverage. The parties need to talk to an insurance agent to implement the requirements.

Do-it-yourself divorce may appear to be a good choice for many people.  However, before they finalize a divorce, they should consult a family law attorney.

Alimony and Bankruptcy

Collecting alimony and child support in some cases is very difficult. So what is a person to do when the payor of alimony files bankruptcy? How do you collect the money? A recent case explains what can be done outside of bankruptcy court.


Alimony and child support are called “domestic support obligations” under bankruptcy law. These are treated as a protected category of debt under the bankruptcy code. The person filing bankruptcy must disclose the existence and status of domestic support obligations when filing bankruptcy. Failure to accurately provide this information may result in a dismissal of the bankruptcy.  Bankruptcy court must address any arrears for any domestic support obligations as part of the bankruptcy process. However, the recipient of alimony is not limited to trusting the filing by the debtor. They can take some actions. The ability to take actions is limited with severe sanctions for taking an improper action. Bankruptcy sanctions are aimed at the person who brought an action in state court and who asked the family court judge to take an action against the debtor.


In the recent case of In re Claudinei Desouza, Bankruptcy Case No. 11-40315-MSH (BAP 1^st Circuit 2013) the recipient of alimony payments filed a contempt in family court. The contempt resulted in a finding that the debtor had failed to pay alimony and he was arrested and held in jail until he paid money as ordered by the state court. The Bankruptcy Appeals Court held that the spouse who filed the contempt violated bankruptcy law and was subject to sanctions for her actions. Specifically, the Court found that the spouse could not file a contempt and could not have the debtor arrested.


When a person files bankruptcy and owes alimony there are five things that can be done by the spouse or ex-spouse relating to alimony. Three of these are in state court and two are in bankruptcy court.


According to the Desouza decision, the following are three actions that a person can take in state court regarding alimony after the other spouse has filed bankruptcy: First, the person can ask state court to establish or modify of an order for alimony. Second the person can ask state court to collect alimony from property that is not property of the bankruptcy estate. Finally the person can ask the state court to withhold income that is property of the bankruptcy estate or other property of the debtor for payment of alimony.


In addition to the three actions that can be taken in state court, there are two actions that can be taken in bankruptcy court: An appearance can be filed listing the money owed for alimony and an adversary proceeding can be filed seeking the right to take other actions in state court such as filing a contempt.


Establishing an order for alimony can occur in a divorce proceeding or a modification of divorce action. Filing either of these actions or prosecuting them does not violate the automatic stay of bankruptcy court.


Collecting alimony from property that is not the property of the bankruptcy estate can be risky. The problem is to determine what property is not part of the bankruptcy estate. Any mistake can have serious consequences for the recipient of alimony. It is best to have the advice of a bankruptcy attorney before trying to determine what is included in the bankruptcy estate.


In Massachusetts, requesting Family Court to issue an order to withhold income for the purpose of paying alimony is not a simple matter if you can't file a contempt. Unlike child support, the Department of Revenue won't collect alimony and won't use their administrative powers to withhold income. The normal procedure in which to ask the court to order the collection of alimony is a contempt action. However, a contempt can't be filed without permission of bankruptcy court. An attempt to withhold income can be made in a divorce or modification action. Based on my experience in Massachusetts Courts, the court is unlikely to order such relief without a contempt action.


In most instances, it is best to seek remedies in both state court and bankruptcy court. Bankruptcy court requires that a person who files bankruptcy to file an affidavit that sets forth an obligation to pay alimony and to certify if the payments are current. The recipient of alimony has the right to file an appearance in bankruptcy court that details the same information. The proper form to use is B 281. If there is a difference between the filing by the debtor and the recipient of alimony, then the Trustee in Bankruptcy should take steps to determine the correct amounts. If the bankruptcy estate has assets, then the Trustee should take additional actions to pay the alimony. Form B 281 can be filed by a person or their attorney. Once filed, it gives the person the ability to participate in the bankruptcy proceeding.


The other action that can be taken is to file an adversary proceeding in bankruptcy court and ask the court for permission to take additional actions in state court. The bankruptcy code spells out when it is appropriate to file such an action. A bankruptcy attorney should be hired before starting an adversary proceeding.


When it comes to bankruptcy matters, state court won't provide bankruptcy advice and may take actions that are prohibited by bankruptcy law. This is a complicated area of law. I recommend that if the payor of alimony files bankruptcy that the recipient should consult an experienced divorce lawyer and perhaps also consult with a bankruptcy attorney.

Dangers of Do-It-Yourself (DIY) Divorce

Hiring a lawyer to handle your divorce can be a very expensive proposition. Many people choose to represent themselves instead of paying an attorney. This is commonly called “do-it-yourself” divorce or simply DIY divorce. While this may save money in the short run, it may be very expensive in the long run.

I compare getting divorced without an attorney to purchasing home owner's insurance. People hate paying the premiums and if a claim isn't filed, they feel like they wasted the money. However, if a casualty occurs, people are extremely happy that they have insurance. The same thing happens with lawyers. If a problem occurs, people are happy that they have a lawyer. Once a problem occurs, if you don't have a lawyer, you may be stuck with something that can't be changed. Judges hold people who do divorces without attorneys to the same standards as experienced lawyers. They don't tell people that they can do things better. They don't tell people when they make mistakes.

Some people think that they can get divorced by themselves because they can purchase forms from the internet. These internet forms can be particularly dangerous for people. These packages claim to provide all the required documents that a couple needs to complete and file a divorce in Massachusetts on their own. These forms may appear to be tailored for Massachusetts but the basic form may be designed for all states or be modified from a form for a different state. As a result, there may be provisions that don't work well or at all in Massachusetts. These forms tend to be one size fits all. Every marriage is different from others and every divorce is different from all others. The forms don't have the ability to address the unique problems of every divorce and they don't explain how the law applies to each party and the children. Lawyers don't just draft documents, they help clients understand how the agreement and the law applies to their unique situation.

People who do their own divorces and draft their own divorce agreements often have problems for many different reasons including:

• They don't understand the legal jargon
  
• They make mistakes filing out forms
  
• They miss filing dates
  
• They agree to court orders without understanding their legal and financial consequences
  
• They don't understand the tax consequences and don't consider taxes when making decisions
  
• They are unable to respond to legal issues that arise unexpectedly
  
• They think that judges will protect them. In some instances judges will manipulate people without lawyers to agree to terms that the judge has no power to order without an agreement.
  
• They agree to things that cannot be reversed or modified.
  
• They don't know the rules of court. The rules of evidence can be particularly problematic. Frequently people go to court thinking that they can prove something at court only to find out that they can't present any evidence at all because they don't understand the rules of evidence.
  

Some people have filed their own forms and thought that they were divorced when they were not. They then married another person and committed the crime of bigamy.

It is cheaper to do the divorce correctly the first time. Hiring an experienceddivorce lawyer may save money when you consider that some of the decisions made in a divorce will last the rest of the person's life.

Remy Murder Case: DA doesn't deserve criticism.

A case in Massachusetts that has received national attention is the unfortunate murder of 27 year old Jennifer Martel. The person arrested for this murder is 34 year old Jared Remy. He is the son of former Red Sox star and current Red Sox announcer, Jerry Remy. This case has received attention because of the brutal way the woman was murdered, the celebrity status of the father of the murderer, and the fact that the police arrested Jared Remy the day before the murder and he was released by the court. The press in the Boston area has criticized the District Attorney, Marian Ryan, for the release of Jared Remy on bail the day before the murder. In this case, the attacks on the DA by the Boston press are unjustified.


I am not involved in this case so the facts, as I understand them, come from news reports on the internet. These reports can be found on the web sites of the Boston newspapers.


Jared Remy has a long history of wrongful behavior. He has been arrested at least fourteen times, had two restraining orders from different women in the past, and was charged on one occasion with violating a restraining order. However, there was no documented incidents of abuse in the Remy-Martel relationship and all previous charges of violence were at least eight years old.


During the night of Tuesday, August 13, 2013 the police were called to the home shared by Jared Remy and the victim. They arrested Remy for domestic assault and battery based on statements by Martel that Remy had pushed or slammed her head into a bathroom mirror. The police noted that there were no marks on the mirror, no damage to the mirror, and no bruising or other marks on Martel. Martel also declined medical treatment. In other words, there was no physical evidence to corroborate the claims by Martel.


Ms. Martel obtained an emergency abuse restraining order during the night. This order was issued based on a telephone call in which Ms. Martel spoke to a Judge. The order probably ordered that Remy stay away from Martel and their home and not abuse her. The order, pursuant to Massachusetts law, expired at 9:00 AM at which time, Ms. Martel had the ability to appear before a Judge in Court and request a restraining order against Remy for a longer period of time. Ms. Martel failed to appear in Court the next morning to request the restraining order. The District Attorney’s office called Ms. Martel when she did not appear. She told prosecutors that she did not want them to extend the emergency restraining order. Jared Remy was arraigned before the Court and Remy was released on personal recognizance with a bail warning and a no-abuse order. The Court did not order that Remy stay away from his home or Martel.


A bail warning is warning given to a defendant that they are under an order not to commit any crimes while they are released on bail. If they commit any crime, no matter how minor, the defendant can be held without bail while awaiting trial. A no-abuse order is an order not to commit abuse against the victim of the first crime.


Thursday night the police again responded to a call to the shared home of Remy and Martel. They found Martel with multiple stab wounds. She died shortly after the police arrived. Witnesses saw Remy on top of Martel stabbing her on their patio. One neighbor tried to stop him. When the police arrested Remy his clothes were soaked in blood. According to the press, there is no question about who committed the murder.


Many news reports and commentary in the Boston area blame the District Attorney for the murder. According to these reports, the DA should have sought to impose a stay away order on Remy as a condition of bail. While this may sell newspapers, it doesn't make much sense.


The court ordered Remy to not abuse Martell and to not commit any crimes. Obviously, the court orders did nothing to prevent the murder. If a person is willing to commit murder, why would anyone think that they would obey a court order to stay away from a person. He violated two orders of the court and committed the most heinous of crimes. Why would one more crime deter him?


In Massachusetts, bail hearings are controlled by G.L. c. 276, § 58. Under this statute, the purpose of bail is to assure the person will return to court when ordered to do so. While Remy had a lengthy history of court cases, the press never reported that he failed to appear in court when ordered to do so. In fact, a lengthy criminal record without a “default” for failing to appear is a good reason to release a person on personal recognizance. Of all the articles in the press that I saw, none of them gave any reason for a judge to impose bail other than he committed a murder the next day. I assume that the other factors that a judge must consider under the statute supported the release on personal recognizance.


Masssachusetts has another statute that applies to bail hearings. The second statute applies if the District Attorney chooses to argue to the court that a person is dangerous and should not be released without conditions. This statute, G.L. c. 276, § 58A, requires notice be given to the defendant and that he be allowed to prepare for an evidentiary hearing on the matter. In this case, given the information known on Wednesday morning, there is nothing to suggest that a judge would have found Remy dangerous under the statute and have done something that would have prevented the murder. (As I indicated above, an order for Remy to stay away from Martell would likely be ignored by Remy as evidenced by the fact that he chose to commit murder.) The victim alleged domestic abuse of pushing her into a mirror. She had no visible injuries or bruises. The mirror had no marks or damage. She refused medical care. She didn't appear in court to extend a restraining order. She told the police that she didn't want a restraining order and wanted Remy released. If she testified, she probably would have testified that she was not in fear of harm. Remy had a record of eight years of no problems and no prior evidence of violence with Martell. While there was a record from more than 8 years ago that would have supported a finding of dangerousness, there was no recent record. Given these facts and the statement by the victim that she was not in fear, there was no basis for the District Attorney to request a dangerousness hearing.


It is easy to look at the murder and blame the District Attorney for failing to control Remy. However, given the laws in Massachusetts and the facts in this case, the District Attorney could not have provided more protection to Martell.


It appears that Martell stayed away from the home with Remy until Thursday night when she returned to Remy the engagement ring he had given her. Perhaps she should have consulted an attorney before she approached Remy about a breakup. While I am not blaming the victim, I think that people can take some easy steps to avoid confrontation. Martell could have brought someone with her, or met Remy in a public place. She could even arrange for a police officer to accompany her when she returned to the house. When domestic abuse occurs, both parties should consult an experience lawyer for advice.
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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.